Wijaya and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 720

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 720

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2005/482 & V2005/490

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JUITARNO WIJAYA and ERLEN WIJAYA

Applicants

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date29 July 2005

PlaceMelbourne

Decision The application to extend time to make these applications is refused.

(Sgd)  John Handley

Senior Member

PRACTICE – extension of time – applications lodged five months after period permitted to appeal – applicants are adult children of a parent who had business skills visa cancelled – AAT proceedings were dismissed pursuant to s 42A (5) – these proceedings were lodged after dismissal of application of father – applicants and father received cancellation notices at same time – EOT refused – absence of explanation for delay – not fair and equitable to extend time – absence of merit

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1985) 58 ALR 305

Comcare v A’Hearn (1993) 119 ALR 85

Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481

Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961

REASONS FOR DECISION

29 July 2005 Mr John Handley, Senior Member           

1. The applicants apply to extend time for the making of these applications pursuant to s 29 (7) of the Administrative Appeals Tribunal Act 1975.  The applications were heard on 26 July 2005.  Both applicants were unrepresented.  Mr Arora appeared (by telephone) on behalf of the Minister.

2.      The circumstances of the applications may be briefly described as follows.

3.      The applicants are the children of Mr Darman Wijaya who was an applicant in proceedings V2004/1310.  Mr Darman Wijaya lodged an application to review a decision to cancel his business skills visa.  Juitarno Wijaya, one of the applicants in these proceedings, was his father’s representative in those proceedings.

4.      In that application, the decision of the Minister was made on 27 October 2004 and the application was received on 3 November 2004.  An application was lodged in this Tribunal on 24 November 2004 and on 2 February 2005 a conference was convened by a conference registrar.  Juitarno Wijaya then appeared on behalf of his father.  Directions were made on 3 February 2005 to lodge a Statement of Facts and Contentions and other documents in support by 15 April 2005.  

5. On 20 April 2005, in the absence of compliance with the Directions, a letter was forwarded to Mr Darman Wijaya putting him on notice that his application was at risk of dismissal if there was continuing failure to comply with the Directions. On 20 May 2005 a hearing was convened to consider whether the application of Darman Wijaya should be dismissed. At that time there was a continuing failure to comply with the Directions made in February 2005. Juitarno Wijaya then appeared on behalf of his father. The Tribunal then decided, in the exercise of its discretion, to dismiss the application pursuant to s 42 (5) of the Administrative Appeals Tribunal Act 1975.

6. In the two applications which are presently the subject of an extension of time application, both applicants record that they also received a letter, being a notice of intention to cancel their business skills visa on 27 October 2004. That notice is found as Annexure 3 to written submissions lodged by the legal representatives of the Minister. The notice contains a reference to s 134 (4) of the Migration Act 1958 (“the Migration Act”) and states that where the Minister cancels a person’s business visa, and a business visa is held by another person who is a member of a family unit, and the person would not have held that business visa if they had not been a member of a family unit, the Minister must cancel the other person’s business permit or business visa by giving written notice. For the purposes of these proceedings I am satisfied that the letter of 27 October 2004 constitutes “written notice”.

7.      The letter also states that if an application is made to this Tribunal within time, to review the decision to cancel the business skills visa, the cancellation of the visa will take effect 28 days after the day upon which the Tribunal gives its decision (if a decision in adverse terms is made).  The letter also points out that if there is a failure to apply to the AAT, cancellation of the visa will take effect on 3 December 2004.

8.      Both applicants applied to this Tribunal to review the decisions to cancel their business skills visa on 3 June 2005.  This is despite being aware of the proceedings which had been issued by their father, being an application for review of the decision to cancel his business skills visa; the decision having been made on the same day as the notice they received advising them of cancellation of their respective visas.  This was also despite Juitarno Wijaya himself appearing on behalf of his father in those proceedings.

9.      The principles to be considered in the exercise of a discretion to extend time to lodge proceedings, are found within the decision of Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1985) 58 ALR 305 at 310 – 311 (“Hunter Valley”).  Those principles may be summarised as –

(i)Prima facie, proceedings commenced outside a statutory period will not be entertained unless there is an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

(ii)Whether any activity had been undertaken by an applicant to make the decision maker aware that it was intended to institute proceedings.

(iii)Whether there was any prejudice to the respondent by the delay in commencing the proceedings.

(iv)Whether settled practices will be upset.

(v)Whether the substantial application, if heard, has merit.

(vi)Consideration of fairness as between applicants and other persons in a similar position.

10.     In the Full Federal Court of Comcare v A’Hearn (1993) 119 ALR 85 the Court decided that it is not an essential precondition that an explanation for delay which is “acceptable” be given (although it would be expected that there would be such an explanation).

11.     In the present case, Juitarno Wijaya said that he and his sister did not lodge applications because they understood that their continuing entitlement to a visa would be determined at or about the time of the hearing of the application brought by their father.  Additionally, Juitarno Wijaya said that he had been advised by a person at the Tribunal that their respective applications would be considered as “part of” their father’s application.  Further, they had been told by a solicitor at the Victorian Legal Aid office that they need not separately apply.

12.     The applicants advised that they had resided in Australia for many years and had received most of their secondary and tertiary education in Melbourne.  They said that hardship would occur because they would either lose their current employment and or current studies would be interrupted.  They said most of their friends reside in Melbourne and they have settled into a life in Melbourne.

13.     Mr Arora, on behalf of the respondent, submitted that the applicants would be exposed to hardship if their applications to extend time were refused but that the hardship would not be “extreme” within the meaning adopted in a number of decisions made by the Tribunal and the Federal Court.  Additionally, it was submitted that no acceptable explanation had been given for the delay in the lodgement of these proceedings.

14.     On balance I am not satisfied that the discretion to extend proceedings should be exercised.

15.     Both applicants are intelligent persons who have completed and who are presently undertaking tertiary education.  They can read and communicate adequately in the English language.  The letter, in my view, of 27 October 2004 (which they both received), clearly put them both on notice that there would be consequences if proceedings were not lodged within time.  The letters respectively contain advice of appeal rights having to be exercised within 28 days and attached to the letter is a directory of the addresses and telephone numbers of each office of the AAT throughout Australia.

16.     I note that Juitarno Wijaya appeared on behalf of and represented his father in proceedings which had previously been lodged in this Tribunal.  He would not be unfamiliar with AAT proceedings.  I also note by a letter from the Minister’s solicitors of 8 February 2005 that the applicants were then advised that they had not lodged separate applications for review with the AAT and unless such an application for review is lodged, the Tribunal will not consider the cancellation of their visa.  Despite that letter being forwarded in February 2005, applications were not made to this Tribunal until June 2005, that then being two weeks after the decision was made to dismiss the application brought by their father.

17.     An acceptable explanation for delay is not a precondition but it would normally be expected that such an explanation would be given.  No such explanation in my view was given in these proceedings.

18.     Additionally I could not be satisfied that the applicants put the Minister on notice that it was their intention to challenge the decision to cancel their visa, before 3 June 2005, which was more than six months after they received their cancellation notices.

19.     Substantially, and by way of conclusion, I could not be satisfied, having read the documents lodged, and having heard the submissions on 26 July 2005, that if heard, the applications for review would have merit.

20.     I acknowledge that the applicants have lived and studied in Melbourne and have many friends here.  I acknowledge also that it would be their preference to remain in Melbourne.  However in Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 the Tribunal decided that “extreme hardship” in the context of s 134 (5) must be subjectively judged and must involve more than “inconvenience or detriment”.  Indeed the Tribunal decided that if loss of a visa caused an applicant to leave Australia, that of itself, would not amount to “extreme hardship” unless more is known about the consequences resulting from a cancellation.  In Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 Foster J decided that the phrase “extreme hardship”, “imports a high degree of hardship but must be applied in the context of the circumstances of a particular application”.  It is for these reasons that I am not satisfied that the applications have merit.

21.     No doubt the applicants would regret having to leave Australia and may find returning to Indonesia to be an unpleasant experience.  However I could not find upon the legislation or by reference to the decisions previously made that their circumstances upon cancellation would cause them “extreme hardship”.  They will be permitted to return to live with their parents and upon returning to Indonesia (consistent with correspondence received) they may qualify for a different class of visa within the skilled migrant stream.

22.     There is a memorandum on the file of Darman Wijaya, dated 12 May 2005, confirming a discussion between Juitarno Wijaya and a Tribunal officer.  The context of the memorandum does not support the evidence heard, in this application (refer paragraph 11).  The advice received in these discussions, as understood by Juitarno Wijaya, does not constitute an explanation for delay, because the discussions were held in May 2005, when he and his sister were then more than five months out of time.

23.     Having regard to the above reasons, being satisfied that it would not be fair and equitable in the circumstances to extend time, because an adequate or acceptable explanation for delay has not been given, and the absence of merit in any proposed appeal, I am satisfied that the discretion to extend time should not, in the circumstances, be exercised.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of –
Mr John Handley, Senior Member

Signed:         Alice Beattie
  Associate

Date/s of Hearing  26 July 2005
Date of Decision  29 July 2005
Solicitor for the Applicant          Applicants Self Represented
Solicitor for the Respondent     Clayton Utz