Boyes v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an application pursuant to O 52 r 15(2) of the Federal Court Rules. The applicant seeks an extension of time for filing and serving a Notice of Appeal from a judgment of Kenny J given on 10 April 2007 in which her Honour dismissed an application pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") with respect to a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 24 April 2006. In that decision the Tribunal affirmed a decision of a delegate of the respondent Minister made on 3 January 2006 to cancel the applicant's visa pursuant to s 501(2) of the Migration Act 1958 (Cth) ("the Migration Act"). 2 Under O 52 r 15(2), the first question is whether there are special reasons such as would enliven the court's discretion to extend the time for the filing and service of a Notice of Appeal. The requirement of special reasons was explained by the Full Court in Jess v Scott (1986) 12 FCR 187 at 195 in the following terms: In that context the expression 'special reasons' is intended to distinguish the case from the usual course according to which the time is 21 days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression 'for special reasons' implies something narrower than this. Even when special reasons are established pursuant to O 52 r 15(2), the power to grant leave to appeal is discretionary (Howard v The Australian Electoral Commission [2000] FCA 1767 at [7]). 3 The reasons upon which the applicant relies, and which he contends are special within the terms of O 52 r 15(2), fall into two categories. The first category relates to a departmental review of the decision originally made by the delegate on 3 January 2006. I have been told, without objection, that that review arose from a report of the Ombudsman into the administration of s 501 of the Migration Act. Apparently the decision made in the case of the applicant was identified as one of those which ought to be reviewed in consequence of the Ombudsman's report. The applicant submits that the respondent would have known, from at least the time when the Tribunal was conducting its review of the delegate's decision, that there was, or at least may have been, a live question whether decisions which did, or at least may have, included that decision ought to be reviewed as a result of the matters which were before the Ombudsman. However, I note that the applicant has informed me that the Ombudsman's report itself was not published until 24 July 2006, some three months after the decision of the Tribunal in his case. 4 Without objection on behalf of the respondent Minister, the applicant tendered two pieces of correspondence from Ms Nicole Pearson, the Acting Secretary, Character Assessment and War Crimes Screening Branch of the Department, each dated 28 May 2007. The first was to the Acting Senior Assistant Ombudsman, and it related to the case of the applicant. In that letter Ms Pearson said that the applicant was identified as a client who met the criteria for inclusion in the s 501 case review, and that she wrote to advise of the outcome reached in his case. She said that the Minister had decided not to intervene in the case of the applicant. She set out a number of factors or criteria by reference to which the applicant's case had been reviewed. The one which is said by the applicant to have been favourable to his present application for an extension of time was whether the highest standard of procedural fairness was accorded. Under that heading, Ms Pearson said: It is concluded that, on balance, Mr Boyes was not accorded the highest standard of procedural fairness (as defined and set out in the Ombudsman's Report) in the process of the cancellation decision. However, the issues that have been identified are regarded as not serious enough to have led to a legal basis to set the visa cancellation decision aside Under the next heading, whether the processing of the cancellation of the visa was consistent with the recommendations in the Ombudsman's report, Ms Pearson said: The processing of Mr Boyes' visa cancellation was not consistent with the recommendations in Professor McMillan's report. However, the approach undertaken by the Department has been assessed as not being of a lesser standard that would warrant setting the decision aside. The Minister has also considered Mr Boyes' circumstances and decided not to intervene in his case. The other letter dated 28 May 2007 was from Ms Pearson to the applicant. Relevantly to the present application, Ms Pearson stated: On 28 June 2006, I wrote to advise that you had been identified as a client who met the criteria for inclusion in the s 501 Case Review, following the publication of the report by the Commonwealth Ombudsman into the administration of s 501 of the Migration Act 1958 as it applies to long-term residents. The Department has now completed the review of your case and concluded that, on balance, you were not accorded the highest standard of procedural fairness (as defined and set out in the Ombudsman's Report) in the process of the cancellation decision. However, the issues that have been identified are regarded as not serious enough to have led to a legal basis to set the visa cancellation decision aside. The Minister has also considered your circumstances and decided not to grant you a visa using his Ministerial Intervention power under s 195A of the Act. 5 The consideration of s 501 cases by the Ombudsman was not referred to by the Tribunal in its decision in the present matter. The Ombudsman's report and the departmental reviews resulting from that report were not referred to by her Honour in her reasons for judgment given on 10 April 2007. 6 The applicant submits that the Department would necessarily have known of the involvement of the Ombudsman and of the subject matter with which he was concerned during the time of the proceedings before the Tribunal, and would necessarily have known at least of the existence of a review process in relation to his own circumstances during the hearing of the matter before Kenny J, which occurred on 8 March 2007. He says, in effect, that the outcome of the review, which is the subject of the two letters to which I have referred, has confirmed what the Department ought to have realised was a reasonable prospect, namely, that the highest standards of procedural fairness were not achieved in relation to the delegate's decision of 3 January 2006. 7 As I understand his point, the applicant says that those matters would have been most relevant before Kenny J, and either ought to have been made known to her and ventilated before her, or ought now to lead, in effect, to a reconsideration of the matters which were before her by way of appeal. From what he has told me, it appears that the applicant was well aware that a review of his case was being conducted within the Department at the time of the proceedings before Kenny J, but, for his own part, he was unable then to point to any determination of that review in a way that would have assisted his case. Furthermore, he justifies his failure to appeal within 21 days of her Honour's judgment upon the same basis, namely, that he did not then have the final documentary result of the review which would have enabled him to sustain the propositions which he now wishes to make on appeal. Although the correspondence on which the applicant relies is dated 28 May 2007, and his present application for an extension of time was not filed until 2 July 2007, the respondent Minister does not take the point that he would have been prejudiced by the additional passage of time between the date when the applicant should have lodged his appeal, 1 May 2007, and the date when he did apply for extension of time. 8 Central to a consideration of the relevance of the correspondence of 28 May 2007, and of the departmental review referred to in it, is an understanding of the matter that was before Kenny J, and correspondingly of the matter that was before the Tribunal. 9 Justice Kenny had before her an application under s 39B of the Judiciary Act. Relevantly to the facts of the present case, the question was whether a writ of mandamus, possibly together with a writ of certiorari, should be directed to the Tribunal for a constructive failure to exercise jurisdiction. No question arose as to whether the Tribunal was right or wrong in the decision which it made. 10 The Tribunal, for its part, was concerned to undertake a full merits review of the decision of the delegate of 3 January 2006. I have been provided with a copy of the Tribunal's decision of 24 April 2006, and with its written reasons for that decision. As one would expect in a review of the kind that was before the Tribunal, the Tribunal embarked upon a complete and unconfined reconsideration of the question which was before the Delegate. It dealt with the merits in every respect, and formed its own conclusion. That was the merits decision which has since defined the rights of the applicant in relevant respects. Put another way, the applicant's visa remains cancelled not because it was cancelled by the Delegate on 3 January 2006, but because the Tribunal affirmed the Delegate's decision on 24 April 2006. 11 I am prepared to accept that the applicant has at least a legitimate and arguable issue as to whether he was accorded natural justice by the Delegate, but that was not the question with which Kenny J was concerned. Her Honour was concerned with the question whether the Tribunal constructively failed to exercise its jurisdiction. The history of the investigation by the Ombudsman and the subsequent Departmental review in relation to the applicant's case do not therefore bear upon the effective merits-based decision which brought the applicant before Kenny J and which now defines the applicant's rights. I do not think it is seriously arguable that the matters dealt with by the Ombudsman and by the Departmental review could have had any bearing upon the matters which were before her Honour. 12 For that reason, I take the view that the existence, the outcome and the timing of the Departmental review and of the applicant's notification of it do not constitute special reasons for the purposes of O 52 r 15(2) of the Federal Court rules. 13 The second category of reasons upon which the applicant relied was raised, I gather for the first time, by him in his submissions before me. He told me, and subsequently confirmed in evidence which I required him to give, that at about 5.00 am on 22 April 2007 he received notification of the death of his mother in New Zealand. The evidence which he gave of the impact of that notification upon him was entirely in harmony with what one would expect of any person in a tragic situation such as that. Manifestly, the applicant was deeply affected by the death of his mother, and the grief which he suffered as a result of that event quite obviously became the major preoccupation in his life for some time thereafter. The contrary was not submitted on behalf of the respondent Minister. The applicant's mother died some 12 days into the 21-day period which the applicant had to appeal from the judgment of Kenny J, assuming that he proposed to do so. In the circumstances I consider that this unhappy event constitutes a special reason such as would enliven the Court's discretion to give the applicant an extension of time under O 52 r 15(2). 14 The next and final question is whether I should, in the exercise of my discretion, give the applicant the extension which he seeks. It will be clear from what I have said in dealing with the first category of reasons upon which the applicant relies that the basis upon which he would seek to contest the judgment of Kenny J is quite misconceived. If there is any other basis, it does not appear either in his application for extension of time, in his affidavit sworn on 28 June 2007, or in anything he put before me in submissions. I am bound to say that an appeal based upon the kind of propositions upon which the applicant has relied would have no prospect of succeeding, for the reasons I have attempted to develop above, in relation to the question whether there were special reasons constituted by the report of the Ombudsman and the Departmental review. 15 Substantially for the reason that the basis upon which the applicant would seek to challenge Kenny J's judgment is misconceived, and would have no prospect of succeeding, I dismiss the application for an extension of time. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup