Gabriel v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an application under s 477A(2) of the Migration Act 1958 (Cth) ("the Act") for an extension of time within which to lodge an application for a remedy to be granted in the original jurisdiction of the court referred to in s 476A(1)(c) of the Act in relation to a decision of the Minister for Immigration and Border Protection to cancel the applicant's Class TY Subclass 444 Special Category (Temporary) visa under s 501A(2) of the Act. That decision was made on 27 November 2014 and notified to the applicant on 1 December 2015. Under s 477A(1) of the Act, the time limited for the making of such an application was 35 days after notice of the decision was given to the applicant. Therefore, the time within which a proceeding should have been brought expired on 19 January 2015. The present application for an extension of time was filed on 29 January 2015. 2 Section 477A(2) of the Act provides as follows: The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order. The discretion for which this subsection provides is narrower than that arising under provisions, commonly found in court rules, which merely empower the court to extend the time for the doing of an act (see eg r 1.39 of the Federal Court Rules 2011 (Cth)). 3 In his application for an extension of time, the applicant stated that a "private legal service" was not available to him during the month of December "due to the Christmas period", and that he was then (and remains) a resident in a detention centre. The affidavit filed with the application added no further detail to this ground. 4 As a matter of construction, I take the view that the state of satisfaction referred to in para (b) of s 477A(2) must be reached in the light of the applicant's reasons for proposing that the making of an order extending time is necessary in the interests of the administration of justice as referred to in para (a) of the subsection. That is to say, para (b) is concerned only with the court's assessment of whether the applicant's reasons advanced under para (a) demonstrate the necessity referred to. The court is neither required nor, in my view, permitted to embark upon its own consideration of whether an extension of time is necessary in the interests of the administration of justice by reference to facts, circumstances or propositions outside those specified by the applicant in his application (as to which, without deciding the point, I will accept, for present purposes, that matters specified in an affidavit filed with the application may also be taken into account). 5 Section 476A of the Act does not invest the court with jurisdiction. Such jurisdiction as the court may have in the proceeding apparently contemplated by the applicant could arise only under s 39B(1) of the Judiciary Act 1903 (Cth). Section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) could have no application (see para (da) of Sch 1 to that Act). The applicant's cause of action must be for mandamus, prohibition or an injunction in relation to the decision of the Minister. 6 Nothing advanced by the applicant on the present occasion - in his application for an extension of time, in his two affidavits or in the submissions which he made on 10 April 2015 - provides any basis to doubt the jurisdictional regularity of the Minister's decision. In a written submission which he attached to his most recent affidavit, the applicant said that his case was similar to Jione v Minister for Immigration and Border Protection [2015] FCA 144. To the extent that the applicant in that case succeeded, the relevant point was a procedural fairness one. But nothing put by the applicant in the present case, and nothing which otherwise appears from the material before the court, raises concerns about procedural fairness apropos the Minister's decision. In other respects, the applicant's written submission was wholly concerned with putting in contest the merits of that decision. 7 The notion that an extension of time is necessary in the interests of the administration of justice involves the proposition that an injustice will, or at least may well, arise if time is not extended. The injustice, of course, would be the exclusion of an applicant with an apparently viable case from the opportunity to present, and to develop, that case in a court with jurisdiction to grant the appropriate remedy. The applicant's difficulty in the present case is that he has not demonstrated the viability of his intended jurisdictional challenge to the decision which was notified to him on 1 December 2014. 8 In the circumstances, I am not satisfied that it is necessary in the interests of the administration of justice that time be extended under s 477A(2) of the Act. 9 The application will be dismissed. I presume that there is no reason why costs should not follow the event, but, lest there be some special circumstance of which the court is not aware, I shall give the applicant leave to apply within seven days. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.