Yassine, A.N.M v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 365

JUDGMENT No. .&S .... l ZL,.

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY )	No G 253 of 1991

)

GENERAL DIVISION )

BETWEEN :  ABDUL NASSER MUSTAPHA YASSINE
Applicant

m:	THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
Respondent

CORAM: HILL 3 PLACE: SYDNEY DATED: 25 MAY 1992

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The matter be stood over to 27 May 1992 at 9.30 a.m. to determine the question of costs.

Note:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

PRINCIPAL

09 J U N 1992
FEDERAL COURT OF

A U N

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY )	NO G 253 of 1991
GENERAL DIVISION

BETWEEN:  ABDUL NASSER MUSTAPHA YASSINE
Applicant

m: THE MINISTER FOR IMMIGRATION,

LOCAL GOVERNMENT AND ETHNIC

AFFAIRS

Respondent

C O W : HILL J PLACE: SYDNEY DATED: 25 MAY 1992

EX TEMPORE REASONS FOR JUDGMENT

The applicant, Mr Abdul Yassine, applies to the court for an extension of time in which to commence proceedings under the provisions of the Administrative Decisions l Judicial Review) Act 1977 (Cth) , ( "the ADJR Act"). The contemplated proceedings seek an order of review of the decision of the respondent Minister for Immigration, Local Government and Ethnic Affairs, made on about 27 November 1989,

that the applicant not be granted an entry permit.

Mr Yassine, a citizen of the Republic of Lebanon, arrived in Australia on 24 February 1989 with a temporary resident visa issued to him on 1 February 1989. He was granted an unrestricted temporary entry permit for a period of three months. The purpose of his coming to Australia was to enter into an arranged marriage which he did on 7 April 1989.

Mr Yassine visited the Department of Immigration with his wife and his uncle on 18 April 1989 and produced a Certificate of Marriage and filled in a form for the purpose of gaining resident status. ~t appears that it was a condition of his continued residence in Australia that he in fact enter into a bona fide relationship with the lady who became, at least for a short time, his wife.

In June 1989, Mr Yassine had an interview with an officer of the department. During the course of that interview he says that he noted that his passport had an entry permit stamped in it. He requested that his passport be returned to him. That request was denied, the officer saying, "No, it will have to be sent down to Canberra". After a number of visits to the department, Mr Yassine visited the Bankstown office on 29 August 1989. The officer of the department with whom Mr Yassine had been dealing returned with his passport in which, across the entry permit he had seen,

were the words, "Stamped in error, Mary Gal lagher, 29.8.89".

He was told, when he sought an explanation of the purported

cancellation of the entry permit, that the decision was made
because he was no longer married to his wife.

On 27 November 1989, and presumably as a result of protestations by Mr Yassine and or his solicitor, the Minister reconsidered the question of whether or not an entry permit should have been granted to Mr Yassine. That reconsideration resulted in a negative decision. Shortly thereafter, albeit marginally out of time, proceedings were commenced by Mr Yassine against the Minister to review the decision made on 27 November 1989 to reject his application for an entry permit.

In those proceedings, Mr Yassine was represented by a Mr Fitzgerald of the Legal Aid Commission of New South Wales. The application for an order of review in the proceedings initiated by Mr Fitzgerald was in precisely the same terms, word for word, as the application in the present proceedings. I shall say something more about that in a moment. The proceedings came on before Einfeld J on 22 February 1990 and were stood down to enable discussions to take place. According to an affidavit of Mr Fitzgerald, read in the proceedings, agreement was reached between representatives of the Minister and himself for the settlement of the matter on the basis that the Minister's " e x i s t i n g dec i s ion" (which can only mean the decision of 27 November

Yassine's application for residency again, after receiving 1989) would be vacated and the Minister would consider Mr

such further submissions as Mr Fitzgerald may have made. The reconsideration was to be irrespective of any claims or decisions made by another party before that date.

In those discussions, Mr Fitzgerald at some stage said to the representatives of the Minister that, as Mr Yassine would submit that the Minister's office had made a valid entry permit decision in May 1989, it might be more expeditious to have that issue litigated instead. The Minister's representative disagreed, saying that the course of action suggested by him would be preferable. Mr Fitzgerald said that he would get instructions. Ultimately, those instructions were presumably obtained and agreement was reached on a settlement which was embodied in a consent order made by his Honour that the application be dismissed and that the Minister pay Mr Yassine's costs of it.

Mr Fitzgerald believed, and I have no reason to doubt that belief, that the effect of the settlement was that there would be a reconsideration of the application for an entry permit on its merits, having regard to the facts as they then stood and any submissions that Mr Fitzgerald would make. In accordance with the settlement, the Minister or his delegate reconsidered the matter and by a letter dated on or about 18 May 1990, communicated to Mr Fitzgerald the result of

that reconsideration, namely, a refusal of his application for the grant of residency status. No application has ever been

made to this court to review the decision of 18 May 1990.

Mr Yassine first instructed Mr Dent, his present solicitor, to act for him on 5 October 1990. Mr Dent briefed counsel to advise and received that advice on 26 February 1991. Upon obtaining that advice, Mr Dent sought to file an application for an order of review, together with an affidavit in support, but the application was rejected having regard to the fact that an application to review the 18 May 1990 decision was out of time. What precisely it was that Mr Dent at that time sought to ask the court to review is not quite clear.

In any event, Mr Dent says that after that time, by which I understand some time in February or March 1991, he lost contact with his client, presumably for some considerable time, as the matter did not emerge until the present application which was brought in May of this year. Mr Dent's affidavit in support of the application was dated 5 May 1991 and no doubt coincides with an attempt to get an extension of time some time in 1991.

The jurisdiction to grant an extension of time in
which to make an application for judicial review under the
ADJR Act is discretionary, but in the exercise of that

discretion there are a number of matters which are to be taken into account as a guide, albeit not an exhaustive guide, in

the exercise of the court's discretion. These factors are set
out in the decision of Wilcox J in Hunter Vallev Develo~ments
Ptv Ltd & Ors v Minister for Home Affairs and Environment
(1984) 58 ALR 305. There is also a detailed discussion of
them in Victorian Broadcastina Network (19831 Ptv Ltd v
Minister for TransDort & Communications (Hill J, 2 October
1990, unreported).

In Hunter Vallev Develo~ments, Wilcox J made the point that the court would not grant an application for extension of time unless p o s i t i v e l y s a t i s f i e d that it was proper so to do. He emphasised the importance of the fact that the Act prescribed a period of 28 days, giving rise to a prima facie rule that proceedings commenced outside that period would not be entertained. An applicant seeking to move the court to extend the time must, at the very least, show an explanation of the delay, as well as circumstances which would render it fair and equitable to extend the time.

In the present circumstances, there has been no attempt to explain the delay, save that Mr Dent says from the bar table that he had difficulty in obtaining instructions from Mr Yassine and it may well be inferred that that difficulty in part had to do with matters of money. Nevertheless, the fact remains that no attempt has been made at all by either Mr Yassine or Mr Dent to explain, not why Mr

Dent did nothing, but why Mr Yassine did nothing.

It is, of course, relevant to look at the consequences to both parties of a grant or refusal, as the case may be, of an extension of time. The consequence to Mr Yassine could be very serious in that, if it really be the case that he is here without a valid entry permit, then it is likely that a decision could be made to deport him. On the other hand, if he has already been granted a valid entry permit and there were no power to revoke it, a decision to deport might be a nullity and subject to challenge in due course. I express no view as to this.

From the point of view of the respondent, it is said that there is prejudice, having regard to the interest of the respondent in the proper administration of the Miaration Act 1958, particularly in a field where public opinion and interest runs high. I might say that there is not, in the present case, the sort of prejudice to the Minister as existed in Victorian Broadcastina Network where not only the Minister but also other persons interested in the subject matter of the decision had for some time relied upon the decision under challenge.

Another relevant matter for consideration is the
merits of the proceedings. The application for review was, as
I have mentioned, word for word identical to that filed in

matter G4 of 1990. The application, if I may say so, was at the time it was filed and still is, somewhat difficult to

follow. It purports to be an application to review the decision of 27 November 1989, inter alia, on the basis that it was not authorised, while the particulars given seem to go to the question of whether the Miaration Act authorised the cancellation of an original entry permit. If the original entry permit were granted and the Act did not authorise its cancellation, then the decision on 27 November refusing to grant an entry permit would be void, but it is not clear to me whether that was the issue intended to be raised.

However, after some discussion ensued as to precisely what the present application was intended to achieve, the solicitor for the applicant accepted that it was an application to review both the decision of 27 November 1989 and the decision of 29 August 1989 and for the purpose of the present application I treat it in that way.

Although the form of the application for review seems to suggest that the question is one of power as to whether the Minister could revoke an entry permit once granted, I doubt if the real issue between the parties is ultimately one of power. Section 3 3 ( 3 ) of the A B Interpretation Act 1901 might, prima facie, serve to authorise, in an appropriate case, a revocation of a permit validly issued. Of course, whether or not this was a proper

appear to be involved here. The real issue between the case could be the subject of challenge, although it does not

parties seems to be another one, namely whether there has ever been granted to the applicant an entry permit at all, which needed to be revoked.

This argument turns, it appears, on the question of
whether a grant of a permit requires the permit actually to
get to the hands of the applicant or whether it is sufficient,

if the decision to grant the permit was made and the permit stamped in a passport which came to the notice of the applicant, albeit that the applicant himself never received it. That is undoubtedly an arguable issue and one which it would be inappropriate for me, at this stage, to comment upon. The problem I have now in extending the time for the applicant to apply for an order of review of the revocation decision is that not only was the decision made a long time ago, but also it was open to the applicant to challenge it in the proceedings which were commenced in this court in 1990. Indeed, the settlement of those proceedings proceeded on the basis that the revocation was indeed valid, otherwise it would have been pointless for the Minister to go about the exercise of considering whether, at that time, it was appropriate to grant a new permit to him. I need not consider whether the consent order brought about an issue estoppel.

Nor do I think that it is appropriate that an decision of 27 November 1989. Proceedings to review that application be given to extend the time for a review of the

decision were commenced and ultimately settled; they were settled upon terms which involved not only that the Minister would pay the applicant's costs, but also that the Minister or his delegate would reconsider. The matter having been litigated and settled, it seems to me totally inappropriate to allow it to be revived again. The impediments on review of those two decisions do not, of course, reflect on any application to review the decision communicated on 18 May 1990 ultimately refusing an application for grant of resident status, presumably as a result of the settlement. However, that is not what the applicant seeks to do and I need not consider whether the result might have been different if that had been the matter challenged.

Having regard therefore to the matters referred to by Wilcox J, I am of the view that it would not be fair and equitable in the circumstances to extend the time to permit the applicant now, in effect, to repeat a challenge brought in

1990 and the subject of a settlement with the Minister. I

would accordingly dismiss the applicant's motion.

I will stand the matter over until 9.30 on Wednesday morning to hear argument on the question of costs.

I certify that this and the

preceding nine (9) pages

are a true copy of the Reasons
for Judgment herein of his Honour

Mr Justice Hill.

Associate:  pd,4dL-

Date: 25 May 1992

Counsel and Solicitors	A. Dent instructed by
for Applicant:	Leitch, Hasson & Dent
Counsel and Solicitors	D. Rowland instructed by
for Respondent:	the Australian Government Solicitor
Date of Hearing:	25 May 1992
Date Judgment Delivered:	25 May 1992