Braganza v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for extension of time to file and serve a notice of appeal. The application for extension of time was filed in this Court on 21 March 2003. It has annexed to it a notice of appeal. The application is supported by an affidavit of the applicant Peter Ignatius Braganza sworn 3 April 2003. Annexures "I" and "J" to that affidavit were missing and are missing from the copy of the affidavit on the Court file and they have been supplemented by way of evidence and are exhibit A in these proceedings. The orders from which the appeal is sought are those made by a judge of this Court on 11 December 2002. 2 On that day the primary judge delivered his reasons and pronounced orders after a hearing on 23 September 2002. The applicant was relevantly applying for a family (residence) (class AO) visa. He had been refused such a visa by a delegate of the Minister. The Migration Review Tribunal (the Tribunal), on 24 April 2002 affirmed that decision. By reason of the date of the Tribunal decision, the matter came to be analysed by reference to the migration provisions brought into effect in October 2001 and in particular came to be affected or apparently affected by the operation of s 474 of the Migration Act 1958 (Cth) (the Act). 3 I interpolate at this point that the basis of the application for the visa which Mr Braganza requests is to enable him, with his sister, to care for their elderly and sick mother who apparently needs 24 hours a day care and who suffers from major respiratory failure. She apparently needs and continues to need constant care and attention. 4 The mother is I am told, not a citizen of Australia, however the sister who is the nominator for Mr Braganza's application is an Australian citizen. I do not propose to set out in these reasons any further details as to the condition of the mother but on the evidence before me, she seems to be seriously and chronically ill, her condition no doubt exacerbated by advanced age and she does apparently on the evidence, require 24 hour a day care. 5 It is unnecessary to recount in detail the matters that were ventilated before the primary judge. It is sufficient to indicate that his Honour, after carefully analysing the reasons for the Tribunal's decision, concluded that the reasoning of the Tribunal did not indicate that it gave proper, genuine and realistic consideration to the claims of the applicant, Mr Braganza. His Honour, in using that phrase, was referring to the body of authority in this court beginning with the decision of Gummow J in Minister for Immigration and Ethnic Affairs v Khan, S. and Ors [1987] FCA 713 which dealt with the notion of the giving of proper, genuine and relevant consideration. 6 In recent times, the independent operation of such a question of principle has been the subject of some discussion in the court outside the field of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in the context of which the phrase first gained currency. Whatever the precise status of this body of authority in the context of the Act, it is without doubt that the conclusions of the primary judge throw into grave doubt in a jurisdictional sense the status of the Tribunal's decision or would have thrown the jurisdictional status into grave doubt had it not been for the operation of s 474 as perceived to be legally correct by his Honour. 7 If I may use short hand, his Honour applied s 474 in accordance with what the majority of the Full Court of this court said in NAAV v Minister for Immigration and Multicultural Affairs [2002] FCAFC 228. While NAAV has not been the subject of more than passing comment by the High Court in S157/2002 v Commonwealth of Australia [2003] HCA 2 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1, serious questions arise and are beginning to be discussed in judgments of this court as to the conformity of NAAV with the underlying reasons of the majority in S157. It is not an over statement though it may, with the fullness of time, be shown not to be entirely correct, to say that s 474 may only have a practical residual operation for non-jurisdictional error, but it is not my task today to assay that task. 8 It is sufficient to say that it is clearly open to be put that Mr Braganza's case would have been decided differently with an understanding of the operation of s 474 provided by S157. That is not a conclusion I draw however, in my view it is plainly open to argument that the gravity of the error otherwise found by the primary judge would, with an interpretation of section 474, as given by the majority of the High Court in S157, lead to the success of Mr Braganza's appeal. 9 Of course, I do not presume in these reasons to either predict success or to state that he should succeed, I am merely stating that there is, it seems to me, a plainly arguable issue that his Honour may well have fallen into error in following the High Court and in doing so may have denied Mr Braganza a successful application. It goes without saying that I make that comment without the slightest criticism of the primary judge. 10 That being the background, as it were, to the merits of the underlying issues, as I perceive them, as they need to be expressed in an application such as this, it is necessary to go to other matters relevant to the exercise of the discretion. The judgment of his Honour was in early December, Mr Braganza in his affidavit quite candidly states that he in effect, decided not to appeal. In particular in par 10 of his affidavit he says that it was his view at the time that he did not want to be involved in further court proceedings because his mother's condition required him to concentrate on giving her care 24 hours a day. 11 Mr Braganza says that he found his involvement in the court proceedings difficult for him to give his mother the care and attention she needed. He found his involvement in the court proceedings to be emotionally draining and stressful and the effect on him upset his mother. Accordingly, he says and I interpolate, in the light of the explanation of s 474 which his Honour lucidly gave the reader of the judgment, he took the view that at the time it was both in his mother's and his best interests if he sought the Minister's intervention under s 351 of the Act rather than appeal. 12 It was his view at the time that he had a strong case on humanitarian and compassionate grounds for the Minister to exercise his discretion favourably rather than pursue further costly and time consuming court proceedings. Mr Braganza then goes on to explain his hopes for that application, those hopes were expunged when he received notification that the Minister did not propose to review his position. I make no criticism of the Minister in that regard. 13 In early February 2003 Mr Braganza learnt that the High Court had given its judgment in S157. He wrote to the Minister on 7 February, that letter does not appear to display full appreciation at that time of the effect of S157. No doubt, as is plain from the application, some time prior to his lodging of the application Mr Braganza became aware of the significance of that decision for the primary judge's reasons. I am prepared to work on the basis that the significance of the decision occurred to Mr Braganza some time in the first half of February. 14 The application was not made for another month, that is explained by Mr Braganza, in a sense by his continuing to wait for the answer to the request under s 351 of the Act. The news that the Minister would not consider exercising his powers under s 351 came to Mr Braganza on or shortly after 17 March, he then invoked the processes of this Court for this application for extension of time. 15 The principles by reference to which I should assess this application are not in doubt. I will not refer to all the cases which deal with it. Under O 52 r 15 of the Federal Court Rules a notice of appeal is to be filed within 21 days after the judgment on appeal is pronounced. The time expired prior to the end of January. Subrule (2) allows the Court or a judge for special reasons to give leave to file and serve the notice of appeal out of time. The principles on which this discretion is to be exercised are discussed in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 - 9, and Parker v The Queen [2002] FCAFC 133. See also Cooper v Comcare [2002] FCAFC 347 in particular at 5; Applicant VAAU of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 15; WAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 399 in particular pars 5 and following; N1202/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 403, in particular [9]-[13]; and, Kennedy v ADI Limited [2002] FCA 1603, [11] and following. 16 There is no real prejudice to the respondent, however, that is not a gateway to the granting of the extension. It is a highly important factor in the exercise of discretion and I take it into account. To a degree Mr Braganza's lateness was a matter of his choice. That is a matter particularly relied on and properly so by Ms Nanson who appeared for the Minister. 17 Mr Braganza has been frank in his affidavit about the choice he made. The reasons that affected his choice and bore upon his choice are ones which also however must be taken into account. He had lost a case based on a view of s 474 which gave him little prospect of success assuming that the majority decision of theFull Court in NAAV was correct. 18 Secondly, the strain of litigation which too often is ignored in judging the reaction of people to litigation and their reactions within litigation was not only becoming distressing for him but also his mother. That is a factor which in human terms is relevant. Whilst there was some delay after Mr Braganza learnt of S 157, the delay is in part explained by his waiting for the Minister's response to his request under s 351. He stated in his affidavit upon which he was not cross-examined that he had some confidence that the Minister would look favourably upon his application by reason of the matters which he put to the Minister and which are reflected in the evidence. These matters concern the compassionate grounds dealing with the position of his mother and her need for care. 19 As I said in Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 7 at [64], the requirement for procedural regularity and the timeous observance of procedure is important. The administration of justice is shaped and sculpted in a curial context by legal principle and the rules of procedure. Procedure enables justice according to law to be executed predictably and consistently, both those matters being important elements in a fair system of the administration of justice. However as I also said in Ayan at [64], any judicial discretion has a human context which generally it is necessary to understand before the exercise of the discretion can be made. 20 While giving real and important weight to the passage of time and the choice of Mr Braganza for a period of time not to appeal, taking into account all the circumstances of the case, in particular the defects in the tribunal's decision identified by the primary judge, the personal circumstances of Mr Braganza and his mother and sister and their effect on his choice not to institute an appeal, the apparent hopelessness of an appeal in any event on the hypothesis that NAAV was correct, and the explanation of the passage of time from his learning of the handing down of the High Court decision in S157, I think it appropriate in all the circumstances to extend time under O 52 r 15(2). I find the circumstances before me to satisfy the phrase "special reasons". 21 My decision should not be taken as licence to seek leave to appeal out of time for anyone who perceives himself or herself to be affected by an apparent change in legal principle from that set out in NAAV by the majority to that set out in the majority reasons in S157. Due respect for finality of litigation and procedural regularity will tend against such a general statement. 22 However, in Mr Braganza's circumstances, in the light of particular matters which I indicated are important and significant I think it appropriate in all the circumstances to exercise the discretion and to extend the time for filing the notice of appeal. 23 I extend time under O 52 r15(2) for the filing and notice of appeal to 4.00 pm on Friday, 11 April. 24 The question of costs arises. Dr Griffiths seeks the costs of the application. Ms Nanson, on behalf of the Minister says that no order for costs should be made. Ms Nanson raises, if I may say so with great respect, a very good point. With what might be seen as a difference between NAAV and S157, though the extent of any such difference is not clear until the High Court deals with NAAV, the position of the Minister is not entirely straightforward in these applications. There are no doubt a large number of people who have had their applications for judicial review dealt with by Judges of this Court on the basis of NAAV who may have either in the reasons for the primary judge or otherwise, have had identified what would otherwise be (absent the operation of s 474 according to NAAV) an apparently arguable case. 25 These cases may stretch back many months into 2002. This kind of difficulty is simply an incident of the operation of the legal system. As I said in my reasons, the fact that I have given Mr Braganza leave to appeal is a matter which I have decided peculiarly by reference to his position and not on the basis of the operation of a general principle arising from the handing down of S157. It is well to remember that it is always a matter for the court under O 52 r15(b) to decide for itself the issue within that framework and in the background of the body of precedent in 2002 and 2003 and in particular NAAV and S157. 26 It was not unreasonable for the Minister to take the position he did, though it might be said without the slightest criticism of the Minister or his solicitors that it did appear that Mr Braganza had a tolerably strong case for an extension of time. In circumstances where it was not inappropriate for Ms Nanson to put the submission she did, briefly and succinctly, and in circumstances where Mr Braganza was obliged to make the application in any event, and persuade the court that it was appropriate to extend the time, I do not think it is appropriate to simply award costs as if on a winning motion. However, I do not think it entirely appropriate to make no order for costs. 27 Looking at the matter as a whole and weighing the strength of the application but also recognising that the application had to be made, the order which I propose is that one half of Mr Braganza's costs be costs in the appeal and the costs of the respondent be costs in the appeal. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop J.