COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CWDS
  Administrative Law - judicial review - application to extend time to lodge
application under ADJR Act - principles to be applied.
  Administrative Decisions (Judicial Review) Act 1977, s. 13
  Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

HRNG
MELBOURNE
#DATE 31:8:1992
  Appeared for the applicant:      Miss P. Tate
  Instructed by:                   Juliano Ford and Co.
  Appeared for the respondent:     Mr D.J. O'Callaghan
  Instructed by:                   Australian Government Solicitor

ORDER
  Application for extension of time refused.

JUDGE1
  The applicant seeks an extension of time to make an application for review
under the provisions of the Administrative Decisions (Judicial Review) Act
1977.
2.  It is common cause that the prescribed period for the purpose of section
11 expired on 15 January 1992.  An application was lodged on 25 May 1992 and
on 24 August 1992 notice of motion seeking an extension of time was filed.
3.  On 26 August 1992 I heard the application for extension of time and
dismissed it with costs.  At the time I indicated that I would give written
reasons for my decision which I now publish.
4.  The evidence upon which the applicant relied in support of his application
for extension of time is contained in two affidavits sworn by his solicitor Mr
P.D.B. Baker on 25 May 1992 and 24 August 1992 respectively.  The respondent,
who opposed the granting of an extension of time filed an affidavit of Mr J.
Fensling, an officer of the Department of Immigration Local Government and
Ethnic Affairs, sworn 26 August 1992.  Neither of the deponents were
cross-examined, and in the circumstances no findings as to credibility were
made.  Accordingly, the affidavits were accepted as prima facie evidence of
the matters deposed to therein.
5.  Although the affidavit material lacks much of the informative detail
usually found in this type of application it is possible to glean from the
evidence the following sequence of events:
    In 1987 the applicant, an Indian citizen then living in India, together
    with his mother and some, but not all of his siblings, made application
    to migrate to Australia.  The applicant's mother and siblings were
    granted the necessary approval but for some reason, possibly because his
    file was misplaced, the applicant's application was not finally dealt
    with until late in 1988, by which time the relevant criteria had changed
    and the application was refused.  It is said (and for present purposes
    it can be accepted to be so) that had the application been dealt with
    expeditiously, it would not have been refused.  By letter dated 23
    November 1988 the Australian High Commission advised the applicant of
    the refusal of his application and the reasons therefor.  In the same
    letter he was advised that the decision was reviewable through the
    Immigration Review Panel process and information concerning that process
    was supplied.  Review was not sought.  On 18 October 1989 the applicant
    entered Australia as a visitor and was granted a temporary entry permit
    for 3 months.  A further temporary entry permit was granted on 3 January
    1990 enabling him to stay in Australia until 18 April 1990.  On 3 April
    1990 he applied for an Extended Eligibility (Family) Entry Permit
    (EEFEP).  There was some confusion as to the correctness of the form of
    the application and ultimately on 4 April 1991 a further application
    form was submitted.  On 18 October 1991 a delegate of the Minister
    refused to grant an EEFEP.  At the request of the applicant's solicitors
    the delegate gave a statement of his reasons pursuant to section 13 of
    the ADJR Act on 18 December 1991.  In a letter dated 31 January 1992
    addressed to Dr Ian Heath, Department of Immigration, Local Government
    and Ethnic Affairs, Melbourne, the applicant's solicitors wrote, inter
    alia:
      ...
      Within 28 days of 18 December 1991 we must issue proceedings
      under the Administrative Decisions (Judicial Review) Act 1977.
      In paragraph 15 of the Section 13 Reasons Colin Cameron the
      delegate turned his mind to a letter from this firm dated 28
      March 1990 in which we had requested that our client's
      application be looked at sympathetically given that the
      claim that "he would have been eligible to enter Australia
      at the time his mother and his other two brothers entered
      Australia in 1987 if it were not for a mix up in processing
      his application in India".
      Colin Cameron decided that there was no provision within the
      Act or Regulations for consideration of an application on
      the basis of "misadventure" by an Overseas Office of the
      Department.  Given that claim he declined to investigate or
      make a decision on that claim.  We enclose a copy of the
      Section 13 Reasons.
      ...
      On 31 October 1991 we wrote to the Department and enclose a
      copy of our letter which we noted that it was at the
      suggestion of one of your offices that applications were
      lodged under the new regulations and it was with
      considerable surprise that we found that these had been
      rejected.  The submission of these applications did not
      however affect our client's rights at law.  In this regard
      we note that our client applied under the old law and his
      rights of review have not expired (refer to section 8(1)(c)
      of the Acts Interpretation Act 1901).   Accordingly we put
      the Department on notice that unless something could be done
      very promptly to sort this out that we proposed to complain
      to the Ombudsman and file an application for extention (sic)
      of time for an order to review pursuant to section 5 of the
      Administrative Decisions (Judicial Review) Act 1977.  It was
      in this context that we requested section 13 reasons.
      We would request that the Department enter into an agreement
      whereby the time for making an application to the Federal
      Court be extended until such time as the allegations set out
      above are properly examined.
6.  On 10 February 1992 the applicant's solicitors wrote again requesting a
response to their letter of 31 January 1992.  On 21 February 1992 the
Migration Internal Review Office (MIRO) advised that the matter was currently
being investigated and on 19 March 1992 MIRO advised that the matter would be
considered further on receipt of the file from New Delhi.
7.  Following receipt of the file from India MIRO wrote to the applicant's
solicitors on 24 April 1992.  After making reference to the rejection of the
applicant's original application in 1988 and to the fact that the review
rights were not availed of at the time the letter continued:
      ...
      Mr Jennings had a second opportunity to seek review after 31
      May 1990 following an announcement by the Minister on 9 May
      1990.  Regulation 173A was introduced from 31 May 1990 to
      provide certain applicants with a right to reconsideration
      of entry permit or visa refusals.  Mr Jennings' case came
      within these provisions.  This right to reconsideration was
      open to him until 31 August 1990, and entitlement to seek
      such reconsideration was publicised both in the Australian
      press and at overseas offices.  However, Mr Jennings also
      failed to take advantage of this second opportunity for
      further consideration of his case.
      Given the time that has since elapsed, it is not now
      possible for the Department to review this decision.  While
      I can understand that Mr Jennings may be reluctant to do so,
      it remains open to him to lodge a new migration application
      and have the case considered afresh under current
      legislation.
      I trust this clarifies the situation for you.  As Mr
      Jennings no longer holds a valid temporary entry permit, he
      should make immediate arrangements to depart Australia and
      notify these to:
                             Compliance Section
                             Department of Immigration, Local
                             Government and Ethnic Affairs
                             2nd Floor, 55 King Street
                             Melbourne 3000   (Tel:  612 3327)
      within 7 days of the date of this letter.  Mr Jennings' file
      has been referred to that area for further action.
8.  On 6 May 1992 the applicant's solicitors wrote to the compliance section
of DILGEA in Melbourne:
      Dear Sir,
      RE:  WILLIAM JOHN JENNINGS
      We refer to the letter of Alan Hutchinson of 24 April 1992.
      Our client requests that he be permitted to leave within 30
      days of 24 April 1992.  A copy of the airline ticket will be
      provided to you as soon as it is in hand detailing flight
      arrangments (sic).
      Please confirm that the above arrangement is acceptable.
      and on the next day received the following reply:
      Refer to your fax of 06/05/92.  DILGEA prepared to allow a/n
      to depart within 30 days of 24/04/92 i.e. on or before
      22/05/92.  However your client is required to attend
      compliance sometime prior to departure with his passport and
      ticket.  When attending please make prior arrangements to
      ensure I am in attendance.
9.  On 22 May 1992 the applicant's solicitors wrote again saying:
      We refer to your telefax of 7 May 1992.
      We have been instructed by our client to file Federal Court
      proceedings challenging the decision made by the Department
      on 24 April 1992.  The Federal Court proceedings will be
      filed on 25 May 1992.
      We request Section 13 Reasons under the Administrative
      Decisions (Judicial Review) Act in relation to that
      decision.
10.  The application for review was filed on 25 May 1992.
11.  In his second affidavit (sworn 24 August 1992) Baker deposed that the
reason for not filing an application for an order to review at an earlier date
was that the applicant's solicitors were attempting to resolve the matter
through further consideration.
12.  I turn now to the application filed on 25 May 1992.  It is said to be an
application to review the following conduct and decisions of the respondent:
      A.    Conduct of the Respondent to be reviewed:
            1.    The failure of the Respondent to make any
                  decision or give proper or prompt consideration
                  on the merits of the application made by the
                  Applicant in New Delhi, India in or about 1987
                  to migrate to Australia.
            2.    The failure of the Respondent to expeditiously
                  make a decision in relation to the Applicant's
                  application to migrate to Australia made in New
                  Delhi in or about 1987.
            3.    The failure or delay by the Respondent to make a
                  decision in respect of the Applicant's
                  application to migrate to Australia made in New
                  Delhi in or about 1987 in circumstances where
                  the law governing the Applicant's application
                  changed and the delay which was occasioned by
                  the Respondent's officers handling of the
                  Applicant's application to migrate was such that
                  the Applicant was disadvantaged.
      B.    Decisions of the Respondent to be reviewed:
            1.    That the Applicant not be permitted to migrate
                  to Australia in or about 1988.
            2.    That the Applicant not be permitted to remain in
                  Australia.
            3.    That the Applicant be required to depart
                  Australia.
13.  The grounds upon which relief is sought are:
      D.    A breach of the rules of natural justice has occurred
            in relation to the conduct and the making of the
            decisions in that the Respondent by its delay has
            effectively prejudiced the Applicant's ability to
            migrate to Australia.
      E.    Insofar as there has been a (sic) exercise of power or
            conduct by the Respondent, such exercise and conduct
            was so unreasonable that no reasonable decision maker
            could have exercised the power to engage in the
            conduct the way in which the Respondent did:
                              PARTICULARS
            By delaying the consideration of the Applicant's
            application to migrate to Australia in 1987 the
            Respondent effectively prejudiced the Applicant's
            position.  The Applicant met the points test to
            migrate to Australia at the time his application was
            made.  Due to delay and the failure to make a decision
            by the Respondent and s (sic) change to the applicable
            the applicant (sic) has been effectively prevented
            from migrating to Australia.
            By requiring the Applicant to file a fresh application
            in Australia and having the Applicant comply with new
            procedures and then by failing to have regard to the
            earlier circumstances which prejudiced the Applicant's
            position.  The Respondent acted unreasonably in
            circumstances where the fresh application should have
            been apporved (sic).
14.  The application does not identify the decisions sought to be reviewed
with sufficient particularity to enable it to be ascertained whether or not
the application is within time.  However, at the hearing of the application
for extension of time counsel for the applicant indicated that review was not
sought in respect of decision B(1), that the decision referred to in B(2) was
the decision made on 18 October 1991 to refuse an EEFEP, and that in B(3), the
intention was to refer to the statements in the letter of 24 April 1992 in
which it is said:
      it is not now possible for the Department to review this
      decision.
and later:
      he should make immediate arrangements to depart from
      Australia ...
15.  As to the matter referred to in B(3) it is my opinion, and I said so at
the time the matter was before me, that no decision to which the ADJR Act
applies is involved.  Indeed, no decision at all is reflected by those words.
Taken in their context, the passages referred to are no more than observations
made by the author of the letter which in no way affected the rights or status
of the application.  Having explained what had occurred in the past the
statement first quoted merely sums up the position.  It is not said that the
preceding details are in any way incorrect nor that the statement is in any
way a misconception.  The second statement quoted, urging the applicant to
make arrangements to leave Australia is no more than a piece of good advice.
The consequences of not accepting the advice must have been obvious to the
applicant, namely deportation.
16.  The only live issue which the applicant wished to litigate had to do with
the decision of 18 October 1991.  As to this the following observations can be
made:
  1.  Section 13 reasons were given on 18 December 1991 and on 31
      January 1992 review proceedings were threatened.  At the time the
      prescribed period had expired.   The applicant's solicitors sought
      but did not receive an undertaking that an extension of time would
      be agreed to;
  2.  When all of the correspondence concerning the decision was
      concluded, namely on 24 April 1992, the applicant's reaction was
      to seek the department's indulgence to remain for a further 30
      days, until 22 May 1992, an indulgence which was readily granted;
  3.  On the last day of the extended period granted by the department,
      the solicitors notified the department that a review application
      would be filed;
  4.  There is nothing in any of the material filed to suggest a basis
      upon which the decision is reviewable under the ADJR Act.
17.  On the material put to the Court it is possible to say two things. First,
that the application is entirely devoid of merit, and second, that the conduct
of the applicant as evidenced by the actions of his solicitors suggest that
the review application has not been made bona fide for the purpose of
obtaining the review of a decision in accordance with the ADJR Act.
18.  The power of the Court to allow a review application to be lodged out of
time is discretionary, and its exercise is not fettered by any statutory
criteria.  Just as there are obvious policy considerations involved in placing
a time limit upon the bringing of review applications, there are equally
obvious, and important reasons why those limits ought not to be too
oppressive.  The discretion must be exercised judicially for good reason.  The
interests of substantial justice and the furtherance of the general policy of
the legislation should always be paramount.
19.  Counsel referred to a number of authorities dealing with the question of
extending time under section 11 but none of the cases referred to bears any
relevant factual similarity to the present matter.  Whilst the various
principles referred to in Hunter Valley Developments Pty Ltd v Cohen (1984) 3
FCR 344 are undoubtedly a very useful guide, they are no more than that.  In
the instant case, as a matter of discretion, I decided to refuse an extension
of time for the reasons that it appeared to me that the substantive
application was doomed to failure and that the appellant's conduct in delaying
the application had not been satisfactorily explained.