AZAEY v Minister for Immigration and Border Protection

1. I have made findings about the self-serving and otherwise implausible explanation now proffered by the Applicant for the almost two year delay in filing his application. I have found (1) that the Respondent's Department was entitled to assume that 'wills.rauhina@gmail.com' was the Applicant's last known email address for the purposes of receiving documents; (2) that the Respondent's Department met the requirements of regulation 2.55 by transmitting the covering letter and attachments (including the relevant decision) by email to 'wills.rauhina@gmail.com' on 23 December 2021; and (3) that the purported 'email sequence history' is ultimately unreliable and self-servingly devoid of any incoming emails whatsoever for the period 21 December 2021 to 18 March 2023. I find that the Applicant's explanation for the delay is unsatisfactory and ultimately unreliable.

1. The nature and extent of the material now before the Tribunal does not facilitate a fulsome assessment of the merits referrable to an ensuing substantive application for restoration of the Applicant's Australian visa status in the event the requested extension of time were granted. This is not the fault of either party given that (1) the Respondent has not had an opportunity (and has not has otherwise been required) to prepare the statutorily mandated bundle of documents pursuant to s 501G of the Act; and (2) the Applicant has not had an opportunity to put together any statement of facts, issues and contentions addressing the requirements of the prevailing Ministerial Direction.[21] My finding can only be that the merits of any substantive application cannot be safely be assessed on the present state of the material.

Prejudice to the Respondent or the general public

1. During the interlocutory hearings before me, the Respondent's representative submitted that the Respondent and the general public would suffer prejudice in the event this Tribunal granted the requested extension of time. I think this submission is fairly made because the Respondent's Department is a significantly sized taxpayer-funded entity with a significantly - sized cohort of current and/or pending visa matters. Its resources are no doubt stretched in terms of managing and finalising those matters. It surely assists with the administrative effort behind management and allocation of those resources for such a Department to know, with a certain level of finality, whether or not a matter is proceeding within the statutory timeframe governing commencement of such a proceeding.
2. I respectfully concur with His Honour Justice McHugh who in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 139 ALR 1 at 9 said:

'.... people should be able to arrange their affairs and utilize their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.'

3. I am of the view that the prejudice to be suffered by the Respondent militates against granting the extension of time sought by the Applicant.

Any alternative avenues for relief if the extension of time is refused

1. As best as I understand the Applicant's position, there are no alternative avenues pursuant to which his visa status to re-enter Australia could be restored to him. It is more likely than not that refusal of the requested extension will be fatal to the Applicant's prospects of securing an Australian visa. This factor does militate in favour of granting the requested extension of time.

Summary of findings about the Hunter Valley Developments principles

1. The Applicant's delay in filing any application for review is both significant and must otherwise be found to be the result of him resting on his rights. His explanation for the delay is both self-serving and implausible. The merits of any substantive application following a grant of the requested extension cannot be safely assessed on the current state of the material before the Tribunal. I have found the Respondent's Department, and the tax paying public who fund it, would be prejudiced by granting the requested extension. They are entitled to a certain level of finality as to whether or not a matter is proceeding within statutorily mandated timeframes. With the possible exception of the merits of any substantive application, the Hunter Valley Development principles I have summarised in this paragraph militate against granting the requested extension of time.
2. The exception, and sole factor militating in favour of granting the requested extension, lies in the likelihood of there being no alternative avenues available to the Applicant to secure a visa in order to return to Australia and that refusal of this requested extension would be fatal to his prospects of doing so.

DECISION ABOUT APPLICATION FOR EXTENSION OF TIME

1. After weighing the abovementioned factors in Hunter Valley Developments, I am not satisfied that it is reasonable to extend the time for lodgement of a review application and therefore the instant Application for Extension of Time should be refused. I so order.

1. The Application for Extension of Time dated 9 November 2023[22] is, pursuant to

section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), refused.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

A1 - Email sent 14 November 2023 attaching Application for Extension of Time (7 pages);

A2 - Series of screenshots of email inbox (15 pages);

R2 - Respondent's Notice of Opposing Application for Extension of Time (8 pages);

R3 - Email from Respondent's representative sent on 18 December 2023 (2 pages).

[1] Pursuant to s 501CA(4) of the Migration Act 1958 (Cth) ('the Act').

[2] Pursuant to s 501(3A) of the Act.

[12] R1, pp 8-26; See also R1, p 179-186.

[18] R3, p 2. Note: the pinpoint page references to each document contained in this Exhibit R3 refer to specific pages at which of each of these documents appear in the Respondent's bundle of material comprising Exhibit R1.

[19] Pursuant to Regulations 2.55(3)(d)(ii) and 2.55(4)(b) of the Regulations.

[21] Ministerial Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.