JUDGMENT No. .e!.0.2 scssal coal Zone IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION No. VG 322 of 1992 BETWEEN: SEKOVE KOROT TUILOMA Firstnamed Applicant and KESATA WAOQANIVERA TUILOMA Secondnamed Applicant and THE MINISTER FOR IMMIGRATION, LOCAL VERNMENT AND ETUNT AFFAIRS Firstnamed Respondent and THE MEMBERS OF THE MIGRATION INTERNAL REVIEW OFFICE "MIRO" AS CONSTITUTED ON OR ABOUT 8 OCTOBER_1990 Secondnamed Respondent and THE MEMBERS OF THE IMMIGRATION REVIEW TRIBUNAL "IRT" AS CONSTITUTED ON 21 DECEMBER 1990 AND/OR ON 15 MAY 1991 Thirdnamed Respondent Coram: Ryan J Date: 10 September 1992 Place: Melbourne EX _TEMPORE REASONS FOR JUDGMENT Ryan J: The applicants have applied for an extension of time in which to seek a review under the Administrative Decisions ) (Judicial Review) Act 1977 ("the Act") of three decisions in respect of applications by them for permanent entry permits after entry. Their applications were originally refused by a delegate of the Minister and a letter dated 8 June 1990 was written to the male applicant notifying him of that refusal. Although the applicant had solicitors acting for him whose address had been given to the Department, that letter was not sent to those solicitors but to 5/13 Clarendon Street, Coburg where the applicants were no longer living. It-is unclear precisely when a copy of that letter was ultimately received by the applicants but it seems to be accepted on the material to have been no later than 17 August 1990. On that date Messrs Ravi, James and Associates, solicitors, wrote to the Department in these terms: "We now act on behalf of the abovenamed. The applicant is unwilling to depart Australia in accordance with your letter of 8th June, 1990 and advise that further submissions will be made to you shortly." On 14 September 1990 the applicant's daughter on behalf of her father, the male applicant, made application to the Migration Internal Review Office ("MIRO") for a review of the decision embodied in the letter dated 8 June 1990. On 8 October 1990 that application was refused by MIRO on the ground that the application to it had been made out of time. On 5 November 1990 Messrs Ravi, James and Associates applied to the Immigration Review Tribunal ("IRT") for a review of both the original refusal of an entry permit and MIRO's rejection of the application fora review of that refusal. On 21 December 1990 the IRT advised the applicant's solicitor that the application to it had been out of time but the letter from a Deputy Registrar of the IRT conveying that advice concluded with these paragraphs: "As you can see from the above analysis, I am unable even on the most generous allocation of dates to find the Tribunal application to be lodged within the prescribed time limits, I shall not make a final decision on this matter for another 28 days, (normally I would wait only 14 days but given the Christmas-New Year "shutdown" I have allowed extra time), to give you an opportunity to present further evidence or submissions on the matters I have raised. A refund of the $300.00 application fee will be made at the end of the 28 day period I have allowed for your submission unless you confirm agreement with my analysis at an earlier date. Please do not hesitate to phone me on ... if you wish to discuss the issues raised." In response to that invitation further submissions were made, but on 15 May 1991 the IRT confirmed its decision that the application to it had to be refused as having been made out of time. On 16 September 1991 Messrs Ravi, James and Associates on behalf of both Mr and Mrs Tuiloma made a fresh request to the Department that they be allowed permanent residence. That application invoked fresh circumstances constituted by the need of the applicant's daughter for protection and support in the face of threats and violence by her estranged husband. That fresh application was refused on 11 August 1992 on the grounds that the applicants had been illegal entrants for over 12 months at the date of their application and were thereby disentitled to a permit by virtue of r.42(1A)(d) of the Migration Regulations. On 27 August 1992 deportation orders were issued against both applicants and they were taken into custody. On 1 September 1992 Northrop J ordered, amongst other things: "That the first-named respondent take no steps to execute the deportation orders affecting the applicants and dated 27 August 1992 until 4.15 pm on Wednesday, 9 September 1992 or until further order." At the conclusion of the hearing yesterday afternoon in the light of the imminent expiration of the time fixed by his Honour's order, Mr O'Callaghan of Counsel for the respondent undertook that the deportation order would not be executed before the delivery of this judgment which I undertook to deliver today. By s.11 of the Act it is provided: "(1) An application to the Court for an order of review: (c) shall be lodged with a Registry of the Court and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the expiration of the prescribed period) allows." The period prescribed for the purpose of s.11(1)(c) is to be ascertained by reference to s.11(3) which provides: "(3) The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after: (a) if the decision sets out the findings on material questions of : fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or (b) in a case to which paragraph (a) does not apply: (i) if a statement in writing setting out those findings, referring to that evidence or other material and giving those reasons is furnished to the applicant otherwise than in pursuance of a request under subsection 13(1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is furnished to the applicant - the day on which the statement is so furnished; (ii) if the applicant, in accordance with subsection 13(1), requests the person who made the decision to furnish a statement as mentioned in that subsection - the day on which the statement is furnished, the applicant is notified in accordance with subsection 13(3) of the opinion that the applicant was not entitled to make the request, the Court makes an order under subsection 13(4A) declaring that the applicant was not entitled to make the request or the applicant is notified in accordance with subsection 13A(3) or 14(3) that the statement will not be furnished; or {iii) in any other case ~ the day on which a document setting out the terms of the decision is furnished to the applicant." In circumstances in which no time limit. is prescribed in one or other of the ways set out in s.11(3), s.11(4) operates by stipulating that: -"(4) Where: (a) no period is prescribed for the making of applications for orders of review in relation to a particular decision; or (b) no period is prescribed for the making of an application by a particular person for an order of review in relation to a particular decision; the Court may: (¢) in a case to which paragraph (a) applies - refuse to entertain an application for an order of review in relation to the decision referred to in that paragraph; or (da) in a case to which paragraph (b) applies - refuse to entertain an application by the person referred to in that paragraph for an order of review in relation to the decision so referred to; if the Court is of the opinion that the application was not made within a reasonable time after the decision was made." It is accepted on both sides that each of the three decisions in respect of which extensions of time are sought, that is the initial decision of the Department, the decision of MIRO rejecting the application for a review of that decision, and the decision of the IRT refusing to entertain an application for the review of MIRO's refusal, were made on or about the dates which I have ascribed to those decisions in the review which I have just made of the facts of this matter. As I gather, it is common ground that in respect of each decision the prescribed period had expired and that the applicants could only maintain their applications for review of those decisions if the Court, in the exercise of its discretion, allowed some further time. In Wedesweiller v Cole (1983) 47 ALR 528, Sheppard J adverted to a number of decisions by other judges of this Court dealing with the considerations to be taken into account in exercising the discretion to extend time which is conferred by s.11 of the Act. His Honour, after citing those cases, went on to say: "I am inclined to agree with Morling J in Becerra's case (p il of transcript) that differences are discernible in these various decisions as to the emphasis which should be given various matters in deciding whether or not an extension of time should be granted in a particular case. But I would respectfully suggest that this is not because of any fundamental disagreement amongst judges as to the approach which should be taken, but more to the need for each judge to address himself to the particular circumstances of the case before him. I do not wish to add to what has been said except to say that there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the Government or a particular department if the application is granted and, generally, what the justice of the case requires. In other cases wider considerations will be involved. In this respect I refer to what was said by Fitzgerald J in Lucic_v Nolan, supra, at p 416. The discretion is vested in the court in completely unrestricted terms and no indication is given of the matter which the court is to consider. The discretion is therefore a very wide one and I would not wish to say more in case my doing so may have the effect of circumscribing in another case what the facts of that case require." I adopt, with respect, his Honour's approach to the exercise of this discretion and his general statement of the principles to be applied. I regard that analysis as consistent with the identification which was made by Fitzgerald J in Lucic v Nolan (1982) 45 ALR 411 of some of the considerations which may be taken into account in the exercise of the discretion conferred by s.11(3). In that case his Honour made these observations about the range of matters which the Court may take into account in deciding whether to grant an extension of time (at 415-417): "It seems broadly accurate to say that there is a legislative intention that certain standards are to be observed in respect of such decisions and actions. However, that is not the only public interest to be served. Other matters of proper public concern which are readily identifiable as relevant to the review of administrative acts and decisions include the need for finality in disputes, the efficient use of public resources, the appropriate allocation and expenditure of public funds, and also where what is in question involves promotion and discipline in the Australian Public Service, the orderly administration of that vast body. Further, the impact of an act or decision is often not confined to a particular individual who is adversely affected and wishes to challenge it; a contest for promotion is an obvious example. The legislation contains various mechanisms to allow these different policy considerations to be balanced. Thus, for example, one of the features of the Administrative Decisions (Judicial Review) Act is that it contains limitations with respect to the time for the commencement of proceedings. Where specific periods are fixed, they are quite short. That carries obvious implications. However, the time limitations are not absolute. In this, as in other matters. arising under the Act, eg in respect of the relief which may be granted under s 16, the court is given a discretion. None the less, it must, in my opinion, be accepted that it has deliberately been made the prima facie rule that proceedings not commenced in time should not be entertained, In this respect, there is an obvious contrast between the terms of s 11(3) which provides a pre-emptive fixed period subject to a discretionary power of extension, and provisions like that of s 11(4) which do not fix any particular period but refer merely to what is in the court's opinion 'reasonable'. I do not think that the court, in exercising its power to make exceptions in appropriate cases, should confine its attention to the consequences to the applicant of a refusal to extend time. Justice, as the ultimate object to be obtained by the exercise of the discretion, seems to me to require that regard be had to broader considerations than merely the interests of the applicant. Further, whilst there will be some matters which are relevant to the question whether time should be extended (in ordinary litigation inter partes) which are also relevant in this context, it seems to me likely that the overlap is only partial and that different emphasis is appropriate to some of the common factors. It may be that exceptional circumstances need not always be shown before time can be extended. However, I consider that an applicant for an extension of time maintains throughout the burden of showing why, in all the circumstances, the extension of time should be granted. I-do-not think that, given proof of certain matters by an applicant, eg an explanation for his delay in making application, an evidentiary onus shifts to the respondents to establish that prejudice will result if the extension is granted; nor, in. my opinion, if the delay is explained and there will be no personal prejudice to the named respondents, should an extension always be granted. All else aside, there will often be no question of prejudice to a respondent decision- maker. It is neither necessary nor desirable, if indeed it would be possible to enumerate the great variety of possibly material circumstances to be considered on an application for an extension of time. Nor, in my opinion, is it possible to identify particular circumstances or classes of circumstances which must automatically be excluded from consideration. Each individual case should be dealt with individually, giving due weight to prior decisions and what they reveal of judicial attitudes, cf s 11(4) and (5). Whilst there are obvious reasons why there should be no attempt at a full investigation of the merits of the application for review on an application for an extension of time, I would not exclude from consideration in. an appropriate case some obvious strength or weakness in an applicant's case or matters which might justify the refusal of relief, if the court has a discretion to do so where a ground for relief is made out." There are observations to similar effect in the judgment of Lockhart J in Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 523. Applying these principles to the facts of the present case, I acknowledge that the consequences for the applicants of a refusal of an extension of time is highly significant because such a decision will have the effect of confining them to a challenge which can be made or has been made within time to the refusal of the second application for a permit. Nevertheless, I consider that the delay in seeking to review each of the three decisions has been inordinate. That delay is largely explicable by reference to the election made by the then solicitors for the applicants to ledge a fresh application for permits on the basis of changed circumstances. That application, it will be recalled, was lodged on 16 September 1991. In this context I adopt what was said by French J in Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, 4 August 1992) where his Honour, after referring to the authorities, to some of which I have already referred, said at pp 18-19 of his reasons for decision, after referring to the judgment of Wilcox J in Hunter Valley Development Pty Ltd'v Minister for Home Affairs and Environment (1984) 58 ALR 305: "His Honour also drew a distinction between cases which affect only the immediate parties and cases involving public administration where the public interest might well dictate refusal of an extension even after only a short delay. : Mr Sundrampillai was notified of the decision of 18 December 1990 on 8 January 1991. No reasons were requested in relation to that decision. Acting on advice, he decided upon a course of action which did not involve any challenge to the decision to accept the recommendation of the Immigration Review . Tribunal. What he did was to file an application for a December 1989 (Temporary) Entry Permit. It may well be the case that he was not advised of the possibility of judicial review by his solicitor. That is a factor which can be taken into account. But having regard to the delay of some 18 months which ensued between the time he had notice of the decision and the time an application was filed, that factor assumes less significance than it might have in the context of a shorter delay. There is some basis for the suggestion that the decision of the Immigration Review Tribunal may have been flawed and to that extent he will be prejudiced by the refusal to extend time. But there is prejudice also to the decision- maker who, in the circumstances, was entitled to regard his decision as concluded, Mr Sundrampillai having gone off on a different tack by seeking a different type of permit. There was no suggestion after January 1991 that the decision notified on that date was to be the subject of further challenge. Nor could the decision-maker after this period of time be expected to accurately recall the way in which he dealt with the Tribunal's recommendations and in particular what parts of its reasoning he accepted and what, if any, he may have rejected. Also to be weighed in this case is the public interest in the expeditious progress of decision-making and review processes. It is antithetical to that interest if a decision made 18 months ago and until recently not the subject of apparent dispute, is able to be called up for judicial review in anything less than exceptional circumstances. In my opinion, no case has been made out for an extension of time in relation to the decision of 18 December 1990." In my view the present application can be assimilated to that which was considered by his Honour. It has not been demonstrated to me that there is any basis for the suggestion that the original decision of the Department was flawed. The challenge to the decision of MIRO is based on a highly technical analysis of evidence concerning dates on which the refusal of the original application for a permit came to the notice of the applicants or their solicitors or both of them. The evidence in support of the analysis most favourable to the applicants is, as far as it has been laid before the Court, to say the least, unsatisfactory, and does not permit me to conclude that if an extension of time were granted the applicants have a strong chance of success. Counsel for the applicants virtually conceded, as I understood their submission, that the third decision, that of the IRT, to refuse the application made to that Tribunal for review is not open to serious challenge. Accordingly, for all of these reasons, the application for an extension of time is refused. I have also considered the question of whether the applicants have an arguable case in respect of their challenge to the second decision of the Department, refusing the fresh application for a permanent entry permit. That was the decision which was advised to them on 12 August 1992, the application for review of which has concededly been made within time. However, in the light of the intractable requirements of r. 42(1A)(d) of the Migration Regulations, I do not regard the applicants as having reasonably arguable prospects of success on that application. Accordingly, I propose to dissolve the injunction granted by Northrop J on 1 September 1992 and to refuse the applications. for extensions of time. 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 Ryan. Dates Associate: Counsel for the applicants: Mr P N Rose and Mr Martin Solicitor for the Applicants: Armstrong Singer and Ross Counsel for the Respondents: Mr D J O'Callaghan Solicitor for the Respondent: Australian Government Solicitor