ASS GENERAL DIVISION GENERAL DISTRIBUTION NOT REQUIRED IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY No. VG 102 of 1987 BETWEEN: THERRANCE WILLIAM NOLAN Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS AND COMMONWEALTH OF AUSTRALIA Respondents 22 MAY, 1987 KEELY J. REASONS FOR JUDGMENT On 22 September 1985 the Minister for Immigration and Ethnic Affairs (the Minister) signed an order for the deportation of Therrance William Nolan (the applicant). On 11 October 1985 an application was lodged by the applicant for the review of that decision by the Administrative Appeals Tribunal. The execution of the deportation order was, pending the proposed hearing by the Tribunal, stayed by an order made by the Tribunal by consent. The respondents released the applicant from custody subject to certain conditions, agreed to by him, as to regular reporting to the department. On 8 December 1985 the Minister signed a statement of reasons for his decision pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975. It appears that those reasons were given to the applicant's solicitors on or about 11 December 1985. In or about February 1986 the applicant failed to report to the Minister's department in accordance with the agreed conditions. It also appears that he did not contact his solicitors at all during the period from late November 1985 until November 1986. In the meantime, on 4 June 1986, his application was dismissed, there being no appearance for him in support of that application. The applicant now seeks, amongst other proposed orders set out in his notice of motion, filed 4 May 1987, an order under s. 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) that the "period in which the Applicant may make application for an order to review the decision of the firstnamed respondent to deport him ... be extended to a date to be fixed by the Court". In the hearing of that motion it has been conceded by Mr. Tracey, of counsel, on behalf of the respondents, that, if the applicant is granted an extension of time then, on the material presently before the court, the applicant has an arguable case in support of three possible challenges, which he wishes to make, to the deportation order. They are that (a) the respondent Minister, in making that order, failed to grant procedural fairness to the applicant in relation to certain matters; (b) s. 12 of the Migration Act 1958, on its true construction, did not authorise the making of the deportation order and (c) s. 12 of the Migration Act 1958 was unconstitutional if, contrary to the submission in (b) above, s. 12 did purport to authorise the order. The applicant's case for an extension of time rested upon three grounds. First, that he has a strongly arguable case that the deportation order should be set aside - referring to the three matters the subject of Mr. Tracey's concession. Second, that there would be no prejudice to the respondents; I accept that submission, notwithstanding Mr. Tracey's two submissions to the contrary. One was that there was a danger of other applicants taking advantage of such a decision as a precedent. The other was that the respondents might be prejudiced by reason of the possibility that the recollection of any witnesses, who might be called by then, would be likely to be less satisfactory than if the application had been filed within the prescribed time. The third ground for an extension of time was that the applicant had given an adequate explanation for his delay i.e. in not seeking to lodge an application under the Judicial Review Act until May 1987 when the prescribed period had expired in January 1986. I have carefully considered the applicant's explanation for the delay and his reasons for "absconding" (as the applicant described his own action) together with the affidavit evidence of his solicitor, Mr. Ford. In my opinion the applicant has not given any adequate explanation for the delay. Mr. Rose has' submitted, on behalf of the applicant, that, at the time when he absconded, he did not know of his fyll rights, including his rights under the Judicial Review Act. However, any relevant lack of knowledge was a direct consequence of the fact that he had failed to communicate with his solicitor at any time between late November 1985 and November 1986. By reasons of the applicant's own action, his solicitor was unable to give to the applicant the Minister's statement of reasons (received about 11 December 1985). Accordingly his solicitor was not given any opportunity by the applicant to give him any advice as to the way in which a challenge to the deportation order under the Judicial Review Act could be made, based upon an examination of the Minister's reasons for decision. In Hunter Valley Developments Pty. Ltd. v Cohen (1984) 3 FCR 344 Wilcox J., at 348, after pointing out that s. 11 of the Judicial Review Act, "does not set out any criteria by reference to which the court's [discretion] to extend time" is to be exercised and suggested (at 348-9) that from the decisions of judges of the court there:- ",.. may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the court's discretion: 1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days is not to be ignored (Ralvon Ag Agricultural Co. Pty oes v ori inal aboriginal bevels ment Comuission 43 ALR 345 at 550). Indeed, it is Gee prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It 1S a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff v Freijah (1982) 62 FLR 280 at 287; Chapman v Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7). 2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests' the finality of the decision (who has _ not "rested on his rights": per Fisher J. in Doyle v Chief of Staff (1982) 42 ALR 283 at zy} and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (1584) 1 FCR 287 with Lucic at 414-415 and Hicke Australian Telecommunications Conmivsion (1983) 48 ALR 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 47 ALR 528. 3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at 287, Hickey at 525-527 and Wedesweiller at 533-537. 4. However, the mere absence of prejudice is not enough to justify the grant of an extension ... 5. The merits of the substantial application are properly to be taken into -account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6. 6. Considerations of fairness as between the applicants and other persons otherwise ina like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-535." In taking into account those principles I have considered, as matters in favour of the applicant, the "merits of the substantial application" and the absence of prejudice to the respondents (see principles 3, 4 and 5). However, I have formed the opinion on the material that it would not be "fair and equitable in the circumstances" to extend the prescribed time. In my opinion both the requirements of justice and the principles summarised by Wilcox J. support the refusal of the present application. Specifically, applying principle (1) from the passage in the decision of Wilcox J., on all the material I am not "satisfied that it is proper" to grant the extension of time sought. The applicant has not shown an "acceptable explanation of the delay". Under principle (2), in my opinion "the decision-maker was allowed to believe that the matter was finally concluded" by reason of the fact that' the applicant had absconded and his application had been dismissed by the Administrative Appeals Tribunal. In Sinclair v The Commonwealth of Australia and Others (unreported, delivered 10 February, 1987) Ryan J. granted an extension of time after considering a number of the decided cases referred to by Wilcox J. in the passage quoted earlier. Having carefully considered his Honour's reasons for judgment, in my opinion a_ refusal to extend the time in the present case would not in any way conflict with any principle enunciated by Ryan J. His Honour's decision is distinguishable for several reasons. First, his Honour considered "that an adequate explanation has been provided for the most significant periods of delay which have occurred" (p. 13); in the present case I am far from being satisfied with the explanation of delay. Second, Ryan J. said that there was an "apparent acceptance on both sides that no other legal remedy is available to the applicant than the review of the respondents' decision which is afforded by the Act" (p. 14). In contrast, in the present proceeding it was expressly accepted by Mr. Castan Q.C., on behalf of the applicant, that the applicant had other remedies presently available to him in the High Court; it was explained that it had been' thought proper to make the present application for an extension of time before instituting any such proceeding. Thirdly, in Sinclair's case, ""[s]ome weight, albeit small" was attached to "the applicant's attempts to obtain relief by way of ministerial or executive action, and the invitation which those attempts evoked to pursue a _ legal remedy". That aspect may be contrasted with the present applicant's failure to pursue his application in the Administrative Appeals Tribunal or to take any other action. For these reasons the motion for an extension of time, set out in paragraph 3 of the applicant's notice of motion, filed on 4 May 1987, is dismissed. I certify this and the seven preceding pages to be a true copy of the Reasons for Judgment of his Honour Mr. Justice Keely Associate: M Vows oy, Date: 22|s \S7 Dates of Hearing 20, 21 May, 1987 Mr. A. R. Castan Q.C. and Mr. P. N. Rose Counsel for the Applicant Solicitors for the Applicant Juliano Ford & Co. Counsel for the Respondent Mr. R. Tracey Solicitors for the Respondent : Australian Government Solicitor