Wang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3197

FEDERAL CIRCUIT COURT OF AUSTRALIA

Wang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3197

File number(s):

SYG 1373 of 2017

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

27 November 2020

Catchwords:

MIGRATION – Application to extend time for applying for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by the Administrative Appeals Tribunal that it did not have jurisdiction to review a decision not to grant the applicant a Temporary Graduate or Skilled Regional (subclass 485) visa – whether extension of time necessary in the interests of the administration of justice – whether adequate explanation given for delay in applying for judicial review – whether there is any merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), Part 3, Schedule 1

Migration Act 1958 (Cth), ss.338(2), 347, 476, 477(1), 477(2), 494B, 494C(5), 494D

Migration Regulations 1994 (Cth), reg.4.10, Schedule 2, cl.485.231

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Number of paragraphs:

38

Date of hearing:

19 November 2020

Place:

Sydney

Applicant:

Appeared in person, assisted by Ms B Lin with leave of the Court, by telephone

Solicitor for the First Respondent:

Mr J Pipolo of Mills Oakley Lawyers, by telephone

ORDERS

SYG 1373 of 2017

BETWEEN:

JINYUAN WANG

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	27 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act in relation to the decision made by the second respondent on 9 February 2017 is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $5,400.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, who is a citizen of the People’s Republic of China, applies for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal). The Tribunal’s decision is that it does not have jurisdiction to review an application for review the applicant purported to lodge with the Tribunal in relation to a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Temporary Graduate or Skilled Regional (subclass 485) visa (485 visa). The Tribunal so decided because it found the application was not made within the 21 day period prescribed by reg.4.10 of the Migration Regulations 1994 (Cth) (Regulations) after the day on which the delegate decided not to grant the applicant a 485 visa.

   BACKGROUND

2. The applicant applied for a 485 visa by lodging online a form of application with the Department of Immigration and Border Protection (Department) on 27 December 2015.

3. To have been entitled to the grant of a 485 visa the applicant had to meet the requirements prescribed by Subclass 485 of Schedule 2 to the Regulations.[1] Relevant to the issues in this proceeding is cl.485.231, which required the applicant meet the following:

   (1)The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.

   (2)Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.

   (3)The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.

   [1] As the Regulations applied at the time the applicant applied for the 485 visa.

4. By instrument IMMI 13/013 commencing on 23 March 2013 the Minister specified the “qualifications that are as a result of study undertaken at Australian Qualifications Framework level seven or higher”. These included a “Masters by Coursework Degree”.

5. In his form of application for a 485 visa, the applicant stated he had completed a Masters of Professional Accounting with the Holmes Institute, and that he undertook that course from 1 February to 1 October 2015.

6. On 27 December 2015 the Department sent a letter by email to the email address of Ms Bree Lin, whom the applicant, in his form of application, nominated as his authorised recipient.[2] The Department’s letter confirmed it had received the applicant’s application for a 485 visa. By letter sent by email on 24 February 2016 the Department requested information identified in a document attached to the letter.[3] One of the items of information the Department requested was “Evidence of study”. The attachment requested the applicant provide:

   evidence of your study undertaken in Australia. This may include a certified copy of a Course Completion Letter from an Australian education provider, Confirmation of Enrolment/ECOE or a letter/statement from your education institution.

   [2] CB18-22

   [3] CB23-32, at CB29

7. The applicant did not respond to the Department’s request for information. On 18 April 2016 the delegate refused to grant the applicant a 485 visa. In his decision record the delegate referred to the Department’s having emailed to the applicant’s authorised recipient’s email address a letter requesting, among other things, “evidence that you meet the Australian study requirement for this visa”.[4] The decision record continued as follows:

   As of today’s date no documents have been uploaded to your ImmiAccount browser or received via email. As you have not provided evidence that your most recently completed qualification was completed within the 6-month period ending the day before your visa application was lodged, I find that you are unable to satisfy paragraph 485.213(c) and are therefore unable to satisfy the requirements of regulation 485.213.

   [4] CB35-41, at CB40

8. (The reference to cl.485.213 is an obvious error. The delegate had earlier set out cl.485.231 highlighting paragraph 3 of that clause.)

9. The delegate sent the applicant the decision record under cover of a letter to Ms Lin’s email address on 18 April 2016.[5] Because the applicant had nominated Ms Lin as his authorised recipient, s.494D of the Act applied, subsection (1) and (2) of which are as follows:

   (1)If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.

   (2)If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.

   [5] CB35-41

10. The “address” of another person an applicant for a visa may give under s.494D(1) of the Act can be an electronic one, including an email address.[6] That means that where, as is the case before me, an applicant for a visa has nominated another person as the applicant’s authorised recipient, and has provided an email address of that person, the Minister (or his delegate) must send any document relating to the application to the authorised recipient, and may do so by one of the means provided for by s.494B of the Act. One of those means is that provided by s.494B(5) of the Act, namely, email. Under s.494C(5) of the Act, where the Minister gives a person a document by the method in s.494B(5), namely, by, among other things, email, the person is taken to have received the document at the end of the day on which the document is transmitted. Thus, by the delegate having sent on 18 April 2016 the letter and decision record to the email address of Ms Lin, being the applicant’s authorised recipient, the applicant is taken to have received the letter and decision record by the end of 18 April 2016.

    [6] MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156, at [30]

11. The delegate’s decision not to grant the applicant a 485 visa is a decision covered by s.338(2) of the Act. That means it is a “Part 5-reviewable decision”, which in turn means it is a decision in relation to which an application for review can be made to the Tribunal under s.347 of the Act in the circumstances provided for by that section. Subsection 347(1) of the Act provides that an application for review of a Part 5-reviewable decision must be made in the approved form and, if the Part 5-reviewable decision is covered by s.338(2) (among other subsections), an application for review of that decision must be given to the Tribunal within the prescribed period, that period being not later than 28 days after the notification of the decision. The period by which an application for review of a Part 5-reviewable decision covered by s.338(2) must be given has been prescribed by reg.4.10(1)(a) of the Regulations, that period being the period that “starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received”.

12. The delegate in his letter dated 18 April 2016 attaching the decision record notified the applicant that he had the right to apply to the Tribunal within 21 days:[7]

    [7] CB36-37

    Review rights

    The decision can be reviewed.

    The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.

    You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.

    This review period is prescribed in law and an application for merits review may not be accepted after that date.

13. The applicant did not apply to the Tribunal for review of the delegate’s decision until he purported to do so on 22 November 2016.[8] In the form of application the applicant stated that Ms Lin was his representative, and he provided Ms Lin’s email address.

    [8] CB42

14. By letter dated 22 November 2016 sent by email to Ms Lin’s email address, an officer of the Tribunal acknowledged the Tribunal had received the application for review, but noted that the “validity of your application has not yet been assessed”, and that the Tribunal “can only review a decision if a valid application for review has been made”.[9] The letter stated the Tribunal requested the Department to provide documents relevant to the application for review. Ms Lin responded by email on 23 November 2016.[10] Ms Lin said she would like to hand in documentation to support the validity of the applicant’s review application. Ms Lin said the applicant’s “application is past the due date because of a medical condition”, but she needed time to prepare. Ms Lin also said that she had called “a staff member at” the Tribunal, and “[t]hey told me to just hand in the application with the reason for the past due date and see if the member will accept it”.

    [9] CB46

    [10] CB48

15. On 25 January 2017 the Tribunal sent to Ms Lin’s email address a letter signed on behalf of the Registrar.[11] The author of the letter states he is of the view that the application for review is not a valid application because “it was not lodged within the relevant time limit”, that time limit being 21 days from 18 April 2016. The author further stated that if the applicant wished to make any comments about whether his application to the Tribunal is a valid application, he should do so by 8 February 2017.

    [11] CB50-52

16. On 8 February 2017 Ms Lin sent an email to the Tribunal attaching a letter addressed to “Dear member”.[12] In her letter Ms Lin said she is not a lawyer, but a friend of the applicant; Ms Lin has known the applicant for three years; he always pays his rent on time until he “became overwhelmed with the pressures of life”; the applicant is currently undergoing treatment for his minor mental illness and skin infection from an accidental cut; the applicant started having trouble with the pressures of life in 2015; the applicant then asked Ms Lin to help him with his 485 visa application; Ms Lin opened an “immi online account” after which the applicant completed the form to which he attached his visa documentation; the applicant was sent a notice to reattach the documentation; the applicant reattached the documentation, but it failed to go through; the applicant did not know the documents did not go through “because it looked like it went through” in that “the upload bar completed its cycle”, and the “confirm button was pressed”; the applicant “assumed if the upload progress bar and confirm button indicated a successful attachment, then it must have attached”; the applicant was shocked when he found out he had not attached his documents successfully; and that exacerbated his illness, and he was not able to cope with his stress.

    [12] CB53-55

17. In addition to Ms Lin’s letter, a document from the applicant was provided to the Tribunal stating: “Note to visa office I have attached the supporting visa documentation to the [sic] my immi online account Please check”.[13] This appears to be a reference to the following documents:

    (a)An email from “Bupa Medical Visa Services” to the applicant sent on 31 March 2016 which refers to the applicant having visited the medical centre “for your visa medical assessment”, and noting the steps the applicant should take to find out his results.[14]

    (b)A letter from a medical practice reporting on an assessment of the applicant that occurred on 23 November 2016.[15]

    (c)A certificate issued by Macquarie University confirming the applicant was admitted to the degree of Master of Commerce on 15 April 2015.[16]

    (d)A letter from the Holmes Institute dated 25 November 2015 stating the applicant was offered a place to study the Master of Professional Accounting at Holmes Institute “commencing 16^th March 2015 and concluding 9^th November 2015”, and that the applicant completed the course requirements as is “deemed eligible to graduate with the award, MASTER OF PROFESSIONAL ACCOUNTING”.[17] There is also a document issued by the Holmes Institute titled “Academic Transcript” setting out the subjects the applicant completed and the results he achieved.[18]

    [13] CB57

    [14] CB58

    [15] CB59

    [16] CB61

    [17] CB63

    [18] CB64

    TRIBUNAL’S REASONS

18. The Tribunal noted:

    (a)the application for review in relation to the delegate’s decision not to grant the applicant a 485 visa was lodged with the Tribunal on 22 November 2016;

    (b)pursuant to s.347(1)(b) of the Act and reg.4.10 of the Regulations the applicant had to apply to the Tribunal for review within 21 days after the applicant was notified of the delegate’s decision;

    (c)the material before the Tribunal indicated the applicant was notified of the delegate’s decision on 18 April 2016, and this notification was in accordance with statutory requirements;

    (d)the Tribunal invited the applicant to comment on the validity of the application for review, in response to which the Tribunal received a letter from the applicant’s friend (Ms Lin);

    (e)the letter from the applicant’s friend referred to difficulties encountered with the Department’s system when attaching documents in relation to the visa documents, and that the applicant is suffering from anxiety and stress;

    (f)the Tribunal had regard to the documents and submissions; and

    (g)there is no provision in the legislation to accept an application that has not been made within the prescribed period.

19. The Tribunal concluded:

    The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 18 April 2016. Therefore the prescribed period within which the review application could be made ended on 9 May 2016. As the application for review was not received by the Tribunal until 22 November 2016 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    COURSE OF JUDICIAL REVIEW HEARING

20. The hearing of the application for an order under s.477(2) of the Act was conducted by telephone on 19 November 2020. The applicant was not represented, but Ms Lin was with the applicant at the place from which the applicant called into the hearing.

21. I began the hearing by describing to the applicant the nature of the hearing that was before me, namely, that it was a hearing of his application for an order that the time by which he could file his application in relation to the Tribunal’s decision be extended; and I explained the matters the Court usually takes into account when considering whether it should make an order under s.477(2) of the Act, these being the length of the delay, whether there are any adequate reasons for the delay, and the merits of the grounds on which an applicant relies for setting aside the decision in question. I also explained the procedure that would be followed. In the course of that discussion I referred to the written submissions the Minister had filed. The applicant said he had not had enough time to consider them and wanted more time to do so. I did not permit the applicant further time. I noted that the applicant was required to, but did not, provide written submissions before the Minister was required to file written submissions; and that it was for the applicant to make out his case, not for the Minister to establish the applicant did not have a case.

22. I then identified the documents that I would need to consider. The applicant said he had only received the Court Book by email the previous day. Mr Pipolo, who appeared for the Minister, said the Court Book had been posted in 2017 to the address the applicant confirmed to me is his current address. I went through each of the documents in the Court Book and asked the applicant whether he recognised and accepted that the documents were what they purported to be. The applicant said he did so and, on that basis, I admitted the Court Book into evidence.

23. When it came time for the applicant to make submissions, the applicant asked whether Ms Lin could speak on his behalf. Mr Pipolo did not consent to granting the applicant’s request. I permitted Ms Lin to speak on behalf of the applicant. I formed the view from the material before me that Ms Lin had assisted the applicant in connection with his application for a 485 visa and had herself communicated, first, with the Department, and then with the Tribunal; and, for those reasons, Ms Lin had knowledge of the matters that were or might be relevant to the hearing. Although I permitted Ms Lin to speak on behalf of the applicant, at various points of the hearing I asked the applicant whether he had anything to add to, or qualify, what Ms Lin said.

24. Towards the end of the hearing Ms Lin said that if I am not satisfied by the arguments she submitted, the applicant would like an opportunity to find a lawyer to argue the applicant’s case. I took this to be an application for an adjournment. I asked what the purpose of the adjournment would be. Ms Lin said it would be to obtain the assistance of a lawyer. I asked why the applicant had not obtained a lawyer in the three years that have passed since the applicant filed his application with the Court, and Ms Lin said there were financial constraints. I asked why, given the financial constraints, Ms Lin believed the applicant would be able to obtain money to pay a lawyer. Ms Lin said she would lend the applicant money. When I asked whether she had the money to do so, Ms Lin said she would borrow money from her parents.

1. I did not decide at the hearing whether I should adjourn the matter to give the applicant an opportunity to obtain a lawyer; but is it necessary for me to consider that question at this point of my reasons. I am not satisfied it is in the interests of justice that I should grant any adjournment. The applicant has had over three years to obtain legal advice; and his having failed to do so is a basis for finding, and I do find, that giving the applicant any further time would not result in any tangible prospect of the applicant being able to afford to engage a lawyer. Further, given the ground on which the Tribunal found it did not have jurisdiction, the correctness of which turns on the construction of a number of the provisions of the Act and reg.4.10 of the Regulations, there is nothing in the material before me that could reasonably suggest that the applicant’s obtaining legal advice could advantage him in any way. I therefore do not propose to grant any adjournment.

   PRINCIPLES

2. Under s.477(2) of the Act the Court may order the extension of the 35 day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

3. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[19]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b)Whether there is any prejudice to the Minister;

   (c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   [19] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, at [47]

4. The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[20] Further:[21]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [20] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63] (references omitted)

   [21]  MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62] (references omitted)

   EXPLANATION FOR DELAY

5. The applicant relies on material contained in an affidavit Ms Lin made, and in particular that part of the affidavit that appears under the heading “11 May 2017 judicial review date extension”. Ms Lin refers to “AAT DIPB: misinformation, mishandling of documentation, which caused” the applicant’s mental illness and mental distress; and Ms Lin having to give the applicant “enough time to relax and be open to suggestions” because Ms Lin did not want to cause the applicant to have another anxiety attack. At the hearing Ms Lin said the applicant was psychologically overwhelmed. Ms Lin claimed it was through the Department’s errors that the applicant was unable to lodge his documents. Ms Lin also claimed that an officer from the Tribunal had misinformed her that the applicant could apply for an extension of time. These are matters on which the applicant relies in his grounds of application, and I will consider them when I consider the apparent merits of those grounds.

6. For reasons I give later, I do not accept that the Department had made any errors; and I do not accept the Tribunal had provided any misinformation to Ms Lin. I am also not satisfied on the evidence before me that the applicant suffers from a psychological condition that prevented him from understanding, and acting on that understanding, that the delegate had rejected his application for a 485 visa because he had not provided the required information; that he had a right to apply to the Tribunal for review within 21 days after he was notified of the decision; and that after he was notified of the Tribunal’s decision, he had to apply to this Court within 35 days. Thus, I am not satisfied the applicant has given an adequate explanation for his not applying to this Court within the 35 day period prescribed by s.477(1) of the Act.

   APPARENT MERITS

7. The application contains the following grounds:

   1.Lack of procedural fairness and natural justice

   2.Given misleading incorrect information by DIPB, AAT

   3.caused applicants [sic] illness which caused his inability to deal with the case

8. It can immediately be said that, even if these grounds are accepted, the applicant would not have an arguable case the Tribunal erred in finding it did not have jurisdiction. There is no arguable basis for contending that the applicant was not notified of the delegate’s decision by the end of 18 April 2016; or that by the combined operation of s.347(1) of the Act and reg.4.10 of the Regulations the applicant was not required to make his application to the Tribunal by the end of 21 days after the day on which the applicant was notified of the delegate’s decision. There is also no arguable basis for contending the applicant made his application for review of the delegate’s decision by the end of 21 days after 18 April 2016. That the applicant may have been misled is not arguably relevant to whether the applicant failed to apply to the Tribunal within the time prescribed by reg.4.10 of the Regulations.

9. The applicant has through Ms Lin given a detailed affidavit in support of each of the grounds, Although irrelevant to whether the Tribunal has jurisdiction to determine the application for review, I will nevertheless consider whether Mr Lin’s affidavit affords a reasonable basis for making findings in terms of each of the grounds.

10. As to the first ground, I have already referred to the delegate in his letter attaching the decision record notifying the applicant that he had a right to apply for review to the Tribunal within 21 calendar days after the day on which he is taken to have received this letter, and that the period was “prescribed in law and an application for merits review may not be accepted after that date”. Thus there is no arguable basis for contending the applicant was not given notice of his rights to apply to the Tribunal for review of the delegate’s decision.

11. As for ground 2, the applicant relies on an affidavit made by Ms Lin, but he has not made an affidavit. Thus, there is no evidence from the applicant about his psychological condition, or about why he did not provide the information the Department had requested on 24 February 2016, or about his understanding of the delegate’s decision record and covering letter dated 18 April 2016; or about why he did not apply to the Tribunal in the 21 day period; or about his communications with Ms Lin about these matters. In the absence of such evidence from the applicant I am not prepared to accept what Ms Lin has said about matters that seek to explain why the applicant did not apply to the Tribunal within the 21 day period.

12. In any event, I am not prepared to accept the assertions Ms Lin has made in her affidavit unless supported by documents. I do not propose to examine each of the assertions she makes, but I will refer to some of the more substantial assertions:

    (a)In section 1 of her affidavit Ms Lin asserts she wrote to the Department asking it to wait so she could get the applicant’s supporting documents, “but nobody replied”, that “[a]fter reading around I realised their decision was final”, and it was “much later I found out that if you want a reply from DIPB you had to write to the complaint (global) unit”. Ms Lin annexes an email she sent to the Department on 30 September 2016. In that email Ms Lin says that after the applicant was informed of the lack of supporting documents she rang “the visa department for him, and was asked to submit this in writing to await a decision”.[22] The Department responded by email on 30 September 2016.[23] The Department stated that “[o]nce a decision has been made on an application it cannot be reviewed or changed by the Department”, and that the Department’s “records indicate the applicant was provided with an explanation regarding the decision and information about review rights”. This exchange of emails does not support Ms Lin’s assertions that she had written to the Department but failed to receive a response. The evidence reveals the Department first received an enquiry on behalf of the applicant, and it responded, on 30 September 2016.

    (b)In section 5 of her affidavit Ms Lin asserts the Department “misled me into believing due dates for the AAT review were flexible and that he could reapply if he sent DIBP new information”. There is no basis for this assertion. The only material on which Ms Lin appears to rely is the Department’s email of 30 September 2016 which makes it clear the Department could not review or change the decision that had been made in relation to the applicant’s 485 visa application. The assertion also ignores what the delegate stated in the letter dated 18 April 2016 about the applicant’s review rights to which I have already referred.

    (c)In section 6 of her affidavit Ms Lin asserts that after the applicant lodged his application for review with the Tribunal, a staff member of the Tribunal informed Ms Lin that “time limit extensions can be applied for with the application”. In the letter Ms Lin sent to the Tribunal in response to the Tribunal’s letter of 25 January 2017 Ms Lin did not refer to any person on behalf of the Tribunal having stated the applicant could apply for an extension.

    [22] Affidavit of B Lin, Annexure 2

    [23] Affidavit of B Lin, Annexure 1

    CONCLUSION, DISPOSITION, AND COSTS

13. The applicant has not provided an adequate explanation for his delay in applying to this Court for a remedy in relation to the Tribunal’s decision, and there is no arguable merit in any of the grounds on which he intends to rely if an order extending time were made. I am therefore not satisfied that it is necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act extending the 35 day period provided for by s.477(1). I propose, therefore, to dismiss the application for an order under s.477(2) of the Act.

14. The Minister applies for costs, and that those costs be set in the amount of $5,400, which is less than the amount provided for in Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). I explained to Ms Lin and the applicant that the usual order relating to costs is that the successful party is entitled to an order that the losing party pay the successful party’s costs. Ms Lin said an order for costs would place an additional financial burden on the applicant. I am satisfied that $5,400 is a fair measure of the Minister’s costs which in justice the applicant should be ordered to pay. I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $5,400.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       27 November 2020