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[2002] FCAFC 367
Federal Court of Australia (Full Court)
2002-11-22
Downes JJ
Original judgment source is linked above.
WILCOX AND DOWNES JJ: 1 This is an application for extension of time in which to appeal to the Court, under s.44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), against a decision of the Administrative Appeals Tribunal ("the Tribunal"), constituted by Deputy President S D Hotop. Deputy President Hotop refused an application by the applicant, Brian Gerald James Goldie, to reinstate, under s 42A of the AAT Act, an application by the applicant for review of a decision made on 20 May 1997 by a delegate of the respondent, Minister for Immigration and Multicultural Affairs ("the Minister"), refusing a visa application. Background 2 The applicant is a citizen of the United Kingdom. While residing in Australia, he applied for a permanent visa. On 20 May 1997 his application was refused, by a delegate of the Minister, pursuant to s.501 of the Migration Act 1958 ("the Act"), on the ground that he was not of good character. 3 On 18 February 1998 the Tribunal affirmed the delegate's decision. A judge of this Court refused an application by way of appeal against the Tribunal's decision. However, an appeal from that decision to a Full Court was allowed and the matter remitted to the Tribunal for further hearing. 4 The further hearing was fixed for 16 and 17 December 1999. The Minister wished to rely on new evidence at that hearing. However, he failed to comply with the Tribunal's directions as to the time for furnishing documents forming part of this evidence. The documents were to be in the form of a supplementary set of documents under s.37 of the AAT Act. The bundle of documents was finally provided on 13 December 1999. It comprised nearly 400 pages, the content of which is not disclosed by the evidence. 5 Upon receipt of the documents, the applicant discussed the position with his then counsel, Mr L Boccabella. The applicant instructed Mr Boccabella to apply for a substantial adjournment at the beginning of the hearing. When the matter was called, on 16 December 1999, Mr Boccabella did so. The solicitor for the Minister suggested that Mr Boccabella had previously seen almost all the material in the bundle, although not as s.37 documents. The accuracy of this assertion was not investigated or resolved. Deputy President Gerber expressed sympathy for the applicant's position but granted an adjournment for only one day. 6 During argument, counsel for the applicant informed Deputy President Gerber that his instructions were limited to making an application for an adjournment. Deputy President Gerber indicated that, if there was no appearance the following day, he would dismiss the application under s.42A(2) of the AAT Act. 7 On the following day, 17 December, Mr Boccabella renewed his application for a substantial adjournment. Again, Deputy President Gerber indicated that he was sympathetic to the position of the applicant. However, he thought the hearing should proceed. He said that, if "anything arises in cross-examination" of Mr Goldie, or Mr Boccabella was "caught by surprise", the application for an adjournment could be renewed. Mr Boccabella affirmed that his instructions were confined to applying for an adjournment; he had no further instructions. He obtained leave to withdraw. As Mr Goldie was not present, there was then no appearance by, or on behalf of, the applicant. Deputy President Gerber then made an order dismissing the application, pursuant to s.42A(2) of the AAT Act. 8 Section 42A(2) of the AAT Act relevantly reads as follows: "(1) Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review. (1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn. (1B) If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision. (2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, a conference mentioned in section 34, or a mediation under section 34A, held in relation to the application, or at the hearing of the proceeding, the Tribunal may: (a) if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or (b) in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding. … (4) If: (a) a person makes an application to the Tribunal for a review of a decision; and (b) the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable; the Tribunal may dismiss the application without proceeding to review the decision. (5) If an applicant for a review of a decision fails within a reasonable time: (a) to proceed with the application; or (b) to comply with a direction by the Tribunal in relation to the application; a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision. (6) If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded. … (8) If the Tribunal, under subsection (2), has dismissed an application …, the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application. (9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances. (10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances." 9 On 17 December 1999, Mr Boccabella told Mr Goldie that an adjournment had been refused and the case dismissed. He advised Mr Goldie that he had grounds for an appeal, but no appeal was instituted. 10 In early January 2000 the applicant discussed with Mr Boccabella the possibility of making an application for an extension of time in which to file a fresh application to the Tribunal to review the decision of 20 May 1997. However, he took no steps to make such an application until 5 May 2000, when he filed an application for extension of time under s29(7) of the AAT Act. 11 Prior to that date, on 24 March 2000, Mr Goldie applied to reinstate the earlier application that had been dismissed by Deputy President Gerber. 12 On 28 March 2000, Mr Goldie was refused a bridging visa, on the ground that he did not satisfy the character test in s.501(6) of the Act. That decision was affirmed by the Tribunal and the Federal Court dismissed a subsequent appeal. 13 Both the application for extension of time and the application for reinstatement came before Deputy President Hotop for hearing on 5 April 2001. On 11 June 2001, the Deputy President published a decision in which he found the Tribunal had no jurisdiction under s.42A to reinstate the original application for review and he refused the application for an extension of time to enable the fresh application to be made. 14 On about 10 October 2001 the applicant apparently lodged with the Western Australia District Registry of the Court an undated handwritten application for an extension of time to appeal to the Court against the decision of Deputy President Hotop. On 14 February 2002 a typed, dated application for an extension of time was filed. It would seem the application for an extension of time was preceded by a Notice of Appeal dated 11 September 2001. That was followed by a Proposed Amended Notice of Appeal dated 14 February 2002. The application for extension of time was argued before us by reference to the later document. This argument extended to the merits of the proposed appeal. Submissions of counsel 15 Mr H. Christie, who appeared for Mr Goldie before us, contended the decision, on 17 December 1999, of Deputy President Gerber to refuse a further adjournment represented a denial of natural justice. He argued it was, therefore, wrong for the Deputy President to dismiss the application for review pursuant to s.42A(2) of the AAT Act. 16 Mr Christie submitted that Deputy President Hotop erred in holding he had no jurisdiction to reinstate the application for review that had been dismissed by Deputy President Gerber. He said there were two sources of power to do this: s.42A(9) and s.42A(10). 17 In relation to s.42A(9), Mr Christie acknowledged there was an issue whether the application for reinstatement, which had not been made until 24 March 2000, was made "within 28 days after receiving notification that the application has been dismissed", as required by s.42A(8) of the AAT Act. There was no evidence whether Mr Goldie received, from the Tribunal, a written notification of dismissal, or (if so) when this occurred. Deputy President Hotop had assumed a notification was sent to Mr Goldie by the Tribunal within a few days of 17 December, apparently because this was usual practice. But Mr Christie contended it was erroneous to proceed on that assumption and that Deputy President Hotop should have held it was not shown that the request for reinstatement was out of time; therefore the application of 24 March 2000 enlivened the Tribunal's s.49A(9) power. 18 In relation to s.42A(10), Mr Christie argued that Deputy President Hotop read too narrowly the words "dismissed in error". The Deputy President had treated those words as extending only to an administrative error, not to an error of law, as was argued against Deputy President Gerber in this case. Mr Christie acknowledged that his submission conflicted with observations made by a Full Court of this Court (Whitlam, Moore and Katz JJ) in Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772; 58 ALD 385, but he submitted those observations were obiter dicta and erroneous and ought not be followed. 19 Mr Christie said his client no longer pressed his complaint that Deputy President Hotop erred in failing to extend the time for a fresh application, pursuant to s.29 of the AAT Act. 20 Mr P. Macliver, counsel for the Minister, contested Mr Christie's submissions in relation to both s.42A(9) and s.42A(10). 21 Mr Macliver said that s.42A(8) does not make the 28 day period commence to run from receipt of a written notification of the Tribunal's decision; the application for reinstatement must be made "within 28 days after receiving notification that the application has been dismissed". Mr Macliver said Mr Goldie received such a notification, orally from Mr Boccabella, on 17 December 1999; therefore the application had to be made within 28 days from this date, but it was not. 22 In relation to s42A(10), Mr Macliver supported the view taken by Deputy President Hotop. He argued this Court should adopt the observations made in Brehoi. Our views 23 It is important to emphasise, at the outset, that we are not here concerned with the question whether Deputy President Gerber erred in declining, on 17 December 1999, to allow a further adjournment of the application for review. That was not an issue before Deputy President Hotop and it is in relation to his decision that we are asked to extend time for appeal. Moreover, in order to form an opinion about that matter, it would be necessary for us to have information about the content of the bundle of documents provided to Mr Boccabella on 13 December 1999 and the extent of his (and Mr Goldie's) previous acquaintance with those documents. It would also be necessary to know something about the issues that needed to be determined by Deputy President Gerber. The material necessary for us to achieve this knowledge has, quite properly, not been placed before us. Accordingly, we express no opinion about the merit of Deputy President Gerber's adjournment decision. 24 In relation to the question whether Deputy President Hotop had power to reinstate the dismissal application under s.42A(9), we think Mr Macliver's argument must be accepted. As he says, the subsection does not require a written notification of the Tribunal's order. The subsection counts the 28 day period from the date the applicant receives notification that the application has been dismissed. Notification may be oral. Mr Goldie was orally notified of the decision on 17 December 1999 by his own counsel, Mr Boccabella. 25 In Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164, there was a question when time commenced to run against the three appellants in respect of appeals to this Court against decisions of the Refugee Review Tribunal. Section 478(1) of the Act then provided that any appeal must be lodged "within 28 days of the applicant being notified of the decision". The evidence was that, more than 28 days before lodgment of the appeals, each applicant was orally informed, in her own language, of the Tribunal's decision. Jenkinson J (with whom Beazley J agreed) held that time commenced to run from that date, with the result that the appeals were out of time. Long was followed and applied by another Full Court (Whitlam, North and Stone JJ) in WACA v Minister for Immigration and Multicultural Affairs [2002] FCAFC 163. 26 Long does not directly govern the present case. However, the statutory language upon which it turned is close to that used in s.42A(8) of the AAT Act. It provides persuasive support for Mr Macliver's argument. 27 Thes.42A(10) issue is more problematic. The difficulty with Mr Macliver's argument, and the decision of Deputy President Hotop, is that each requires the Court to read into the subsection a word ("administrative") which is not there. The stated condition for the exercise of the subs (10) power is that "it appears to the Tribunal that an application has been dismissed in error". The subsection does not impose any qualification or limitation on the word "error". 28 The only limitations that we can see in s.42A(10) are: (i) that the Tribunal has dismissed the application; and (ii) that the act of dismissal was attended with error. 29 We do not think it is necessary, in order to enliven the Tribunal's power under s.42A(10), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor's mistake induced the dismissal of the action, it could properly be said the application had been "dismissed in error". 30 A difficulty about importing the word "administrative" into s.42A(10) is its imprecision. It is possible to make a clear distinction between actions performed by administrative officers of the Tribunal, such as the Registrar or registry personnel, and actions performed by the members of the Tribunal in their quasi-judicial capacities. It might be possible to say that actions of the former class are "administrative" actions. But this meaning of the word "administrative" could not sensibly be read into s.42A(10); a dismissal of an action under subs (1) or (2) will necessarily be an action falling into the latter class. An order under either of those subsections would need to be made by a member of the Tribunal exercising the Tribunal's quasi-judicial powers. 31 In the course of argument, it was suggested that it is unlikely that Parliament intended that one member of the Tribunal could sit in judgment on a decision of another member. It was said that the appropriate course, envisaged by the Act, was appeal under s.44 of the Act. However, it is not uncommon for rules of courts to allow one member of the court to set aside an order (especially a default order) made by another member. As a matter of practice, no doubt, the application to set aside the original order will usually be heard by the person who made it. But this is not always practicable and there is usually no rule to that effect. The suggested inconsistency with s.44 must be considered in the light of the fact that s.42A(10) only covers default dismissals under s.42A, not dismissals after a hearing on the merits. 32 The considerations to which we have referred suggest it is erroneous to place any limitation on the "error" referred to in s.42A(10). Standing in the way, however, are the observations in Brehoi and the material on which those observations were based. While it is correct to say the observations were obiter, they were unanimous and made only after consideration of the history of s.42A. The Court noted that s.42A(10) was inserted in order to give effect to a recommendation contained in the Report of the Review of the Administrative Appeals Tribunal presented in November 1991. That report stated (Appendix 9, Proposal 28) that an "application which has been dismissed for failure to appear cannot at present be reinstated although such failure is found to be excusable". To repair that omission, the report recommended what became subss (8) and (9) of s.42A. The Full Court in Brehoi went on, at paras 28-29, to explain the genesis of subs (10): "As to what became s 42A(10), the report had identified as a problem … the following: The amendment proposed by Proposal 28 would deal with the situation of vacation of a dismissal after failure to appear, and that failure is later found to have been excusable. There remains a need, both generally and if Proposal 23 [which was that an applicant permitted to 'discontinue' an application in writing] be enacted, for there to be a power to vacate a dismissal where the application has been dismissed by administrative error on the part of the [Tribunal]. In other words, the problem identified was the absence of a 'slip' rule. The report's proposed amendment to overcome the problem had been to provide that 'the Tribunal may vacate the dismissal of any application for review where such dismissal has occurred through administrative error on the part of the Tribunal'. The Senate explanatory memorandum for the bill which became the 1993 Act, in explaining the clause which became, without debate or amendment, s 42A(10), adopted (at p11) the language which had been used in the report, saying that the clause provided for the Tribunal 'to reinstate an application which has been dismissed through administrative error on the part of the Tribunal'." 33 The difficulty we see with this analysis, with respect to the Brehoi Full Court, is that Parliament did not in fact adopt the amendment wording proposed in the Review Committee's Report. For reasons unknown to us, it did not include the adjective "administrative" as a limitation on "error". Accordingly, although it might be correct to say that the problem perceived by the Review Committee was the "absence of a 'slip' rule", whatever that means in this context, the adopted solution arguably did more than rectify the problem. Whether it did more is the very issue of construction presently under discussion. 34 Although it is appropriate to take account of the Senate explanatory memorandum (see s.15AB(1) and (2) of the Acts Interpretation Act 1901), too much ought not to be made of it. It seems incorrect to say, as the memorandum did, that "the clause provided for the Tribunal to 'reinstate an application which has been dismissed through administrative error on the part of the Tribunal'" (Our emphasis). Although rectification of administrative errors (whatever they might be in this context) was apparently the idea behind the amendment, the word adopted by Parliament was not so limited. 35 After careful consideration of the matter, and with reluctance, we have come to the conclusion that the view expressed on this issue in Brehoi is not correct. It ought not be followed. 36 Deputy President Hotop (rightly) considered himself to be bound by Brehoi. It follows from what we have said that, without any fault on his part, Deputy President Hotop was led into error. Deputy President Hotop did have power to make a reinstatement order under s.42A(10). Disposition 37 In the light of that conclusion, it is necessary for us to consider what course should be taken in relation to the application to extend time to appeal against the decision of Deputy President Hotop. Mr Christie's position is that, if Deputy President Hotop erred in holding that the Tribunal had no power to reinstate, the Court ought to extend the time for an appeal in which that error could be corrected and the matter should then be remitted to the Tribunal to determine whether a reinstatement order ought to be made. Mr Macliver contends there is no material by reference to which Deputy President Hotop could consider it appropriate to reinstate the original application. 38 We think it is desirable, in evaluating these opposed positions, to note the arguments on reinstatement put to Deputy President Hotop. At para 37 of his reasons for decision, the Deputy President said: "[The applicant] submitted that the Tribunal's dismissal of his application for review on 17 December 1999 involved an error on its part in at least the following respects: • the Tribunal had no power to dismiss his application under s42A(2)(a) of the AAT Act because his counsel did appear at the hearing on 17 December 1999 and, accordingly, the relevant statutory condition precedent to the existence of that power, namely a failure by him to appear either in person or by a representative, was not satisfied; • the Tribunal failed to give the applicant or his counsel a reasonable opportunity to consider and respond to the 'supplementary s37 documents' (comprising 380 pages) which had been served on his counsel on either 13 or 14 December 1999, and to make any additional submissions, before deciding to dismiss his application for review on 17 December 1999, and, in those circumstances, that decision by the Tribunal involved a denial of natural justice; • the Tribunal failed to consider and act upon options, other than the dismissal of the applicant's application for review, that were open to it, including proceeding to conduct a review of the delegate's decision of 20 May 1997 on the merits either by holding a hearing in the absence of the applicant or his counsel, pursuant to s40(1)(b) of the AAT Act, or by determining the matter 'on the papers', pursuant to s34B of the AAT Act, without holding a hearing." 39 The first of these propositions suffers the defect of failing to differentiate between the situation that applied during the application, on 17 December 1999, for a further adjournment and the situation that applied after the Deputy President refused an adjournment and Mr Boccabella withdrew from the case. The order under s.42A(2) was made at the latter time. It may be that Mr Boccabella was still in the hearing room when the s.42A(2) order was made, but he was no longer representing Mr Goldie. No other lawyer was then representing Mr Goldie and Mr Goldie was not, himself, in attendance. By virtue of Deputy President Gerber's ruling, the hearing was to proceed, but the applicant failed either to appear in person or by a representative. The condition precedent to a s.42A(2) order was satisfied. 40 The second proposition complains of Deputy President Gerber's failure to allow Mr Boccabella more time to consider the supplementary s.37 documents. As indicated, that was not an issue that fell for determination by Deputy President Hotop. 41 The third proposition asserts that the Tribunal - that is, Deputy President Gerber - failed "to consider and act upon [other] options". There was no evidence before Deputy President Hotop that Deputy President Gerber failed to consider other options. It is clear that he failed to act upon other options, but he was not bound to do so. He had a discretion as to the most appropriate course and there was nothing before Deputy President Hotop to suggest his discretion miscarried. Indeed, if one considers the position in which he was placed, after Mr Boccabella withdrew, it might be thought Deputy President Gerber had little choice but to dismiss under s.42A(5). The applicant had apparently chosen to instruct Mr Boccabella to appear only for the purpose of applying for a further adjournment, despite the fact that he had previously been retained generally for the case. The applicant had also chosen not to attend in person. This meant that, if the adjournment application was refused, there would then be no appearance by, or on behalf of, the applicant. In effect, the applicant gambled on obtaining an adjournment. When it was refused, and Mr Boccabella withdrew, there was no way in which Deputy President Gerber could conduct a satisfactory hearing. It would not be surprising if he felt that it would be preferable (and more generous to the applicant) to dismiss the application under s.42A(2) - a course that would not preclude a subsequent fresh application or application to reinstate - rather than, irrevocably, to determine the matter in the absence of the applicant or "on the papers". 42 In our opinion, there was no material before Deputy President Hotop that would have justified him in determining that the proceeding had been "dismissed in error" by Deputy President Gerber. As a matter of law he would be bound to conclude it had not. Accordingly, although we think he erred in his understanding of the scope of s.42A(10), his decision to reject the reinstatement application was correct. 43 The appropriate order is that the application for leave to appeal be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox and Downes.
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
REASONS FOR JUDGMENT CARR J: INTRODUCTION 44 This is an application for an extension of time in which to appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal"), made on 11 June 2001, to dismiss an application for reinstatement of an application which had been summarily dismissed by the Tribunal on 17 December 1999. The proposed appeal would raise the question of when "an application has been dismissed in error" within the meaning of s 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the Act"). That subsection relevantly empowers the Tribunal to reinstate such an application, either on its own initiative or on the application of a party to the proceeding.
factual and procedural history 45 The applicant, who is a citizen of the United Kingdom, first arrived in Australia on 24 February 1992 on a visitor visa. On or about 27 March 1993 the applicant married an Australian citizen in Australia. On or about 17 May 1993, he applied for a Class 820 (Extended Eligibility (Spouse)) visa and entry permit and a Class 801 (Spouse (After Entry)) entry permit. On 28 January 1994, the applicant was granted a Class 820 visa and entry permit valid until 17 July 1995. As from 1 September 1994, his outstanding application for a Class 801 entry permit was, pursuant to the Migration Reform (Transitional Provisions) Regulations 1994, treated as an application for a Transitional (Permanent) visa. 46 On 20 May 1997, a delegate of the respondent refused that application, pursuant to s 501 of the Migration Act 1958 (Cth), on the ground that the applicant was not of good character. The applicant applied to the Tribunal for review, but on 18 February 1998 the Tribunal affirmed the delegate's decision. The applicant applied to this Court for an order of review. He was unsuccessful at first instance, but on appeal to the Full Court the Tribunal's decision was set aside and the matter was returned to the Tribunal for re-hearing. The re-hearing was listed for 16 and 17 December 1999. 47 The Tribunal made certain interlocutory directions. It appears that the respondent wished to rely on further material in addition to the material usually referred to as "the T documents". Initially the directions required the respondent to file and serve this material by 28 October 1999, but the respondent was given two further extensions to 11 November 1999 and 26 November 1999 respectively. Part of the applicant's case is that the respondent did not comply with that direction within the time as so extended. 48 On 14 December 1999, the respondent delivered by courier to the applicant's counsel, Mr Lorenzo Boccabella, a bundle of approximately 400 pages of documents. On 16 December 1999, Mr Boccabella appeared before the Tribunal and sought an adjournment on the basis of the late service of such a large number of documents. The Tribunal granted an adjournment, but only until the next day. On 17 December 1999, Mr Boccabella renewed his application for an adjournment but the Tribunal refused any further adjournment. Mr Bocabella then told the Tribunal that he was, in the circumstances, instructed to withdraw and he did so. The Tribunal then made an order, expressed as being pursuant to s 42A(2) of the Act, dismissing the application. 49 By letter dated 24 March 2000, which was received by the Tribunal on 6 April 2000, the applicant sought to have his application reinstated. He made a formal application for reinstatement on 9 May 2000. On 11 June 2001 the Tribunal dismissed that application. 50 The period provided in the Act for an "appeal" from that decision is not later than the 28th day after the day on which a document setting out the terms of the Tribunal's decision is furnished to the person, but the Court is given power to extend that time - see s 44(2A)(a). The relevant time for filing the appeal to this Court expired on or about 9 July 2001 (it does not appear from the papers precisely when the applicant was notified of the Tribunal's decision). The applicant lodged a document headed "notice of appeal" with this Court on 11 September 2001. On 14 February 2002, he filed an application to extend the time for filing a notice of appeal, together with an amended proposed notice of appeal. 51 On 5 October 2001, an order was made that the application for an extension of time be heard at the same time as the hearing of the appeal if the extension was granted.
Whether time should be extended 52 The applicant has filed an affidavit in which he swears that he initially contemplated proceedings in the High Court as his only or appropriate remedy. Eventually he filed an appeal in the Federal Court on 11 September 2001. Throughout that period, it appears that the applicant was in prison and not legally represented. The applicant submits that he had not "sat on his hands" but rather he had changed his mind as to the appropriate course of action. He had not accepted the decision and decided to do nothing. There would be, so the applicant submitted, no prejudice to the respondent by reason of any extension of time. The applicant contended that there was substantial merit in his grounds of appeal. 53 The respondent contends that the applicant's affidavit does not provide any explanation, let alone any acceptable explanation, of his delay in lodging his appeal in this Court. The respondent says that in the absence of some acceptable explanation for that delay, an extension of time should not be granted.
my reasoning in relation to whether time should be extended 54 The approach which a Court takes when considering an application for an extension of time for bringing an application for review of an administrative decision has been helpfully outlined in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. That approach has been applied in decisions relating to extension of the time limited under s 44 of the Act - see Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 at 620; Peczalski v Comcare [1999] FCA 366. 55 Although in the Hunter Valley Developments case it was said (at p 348) that it was a pre-condition to the exercise of the discretion to extend time to show an "acceptable explanation of the delay", a later decision of a Full Court of this Court, in the context of an application to the Tribunal itself for an extension of time, suggests that there is no such condition. In Comcare v A'hearn (1993) 45 FCR 441 at 444 the Full Court said this: "We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential pre-condition: see Dix v Crimes Compensation Tribunal [1993] 1 VR 297 at 302 per Brooking J, with whom Fullagar and Tadgell JJ agreed; cf Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 and Maric v Comcare (1993) 40 FCR 244 at 247-249." 56 Applying the well-known principles, it seems to me that time should be extended in this matter. 57 It appears that at all material times the applicant was in prison. On 27 June 2001, sixteen days after the Tribunal's decision, he lodged an application with the High Court of Australia seeking prerogative relief in relation to the decision made by the respondent's delegate on 20 May 1997. Then, within about two months of the expiry of the time for appealing from the Tribunal's decision, the applicant lodged a document headed "notice of appeal" in this Court in respect of the Tribunal's decision. It would seem that he was unaware that he required an extension of time. 58 In my view, the applicant has shown an acceptable explanation for the delay. He has not sat on his hands. No prejudice to the respondent has been shown. 59 Furthermore, I think that there is merit in what I consider should become the substantial application. I think that, if time is extended, the appeal should be allowed, for the reasons which I set out below.
the proposed grounds of appeal 60 The first ground of the proposed appeal is that the Tribunal erred in its interpretation of the words "in error" in s 42A(10) of the Act. The Tribunal followed certain obiter dicta of a Full Court of this Court in Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385 to the effect that the word "error" in that subsection meant administrative error on the part of the Tribunal. The Tribunal expressed no opinion as to whether the Tribunal which had dismissed the applicant's application on 17 December 1999 did so in error. But it said that if the Tribunal had done so in error, that would have been an error of law and not "a mere administrative error". There was, so the Tribunal noted, no evidence before it that the dismissal of the applicant's application for review on 17 December 1999 was the result of any administrative error on the part of the Tribunal. Accordingly, the Tribunal held that the applicant's application for review was not "dismissed in error" within the meaning and for the purposes of s 42A(10) of the Act and thus it lacked jurisdiction to reinstate that application. 61 The applicant submitted that the Tribunal's conclusions were wrong in law. Mr Christie, counsel for the applicant, contended that, on the authorities, the Tribunal's decision of 17 December 1999 was void by reason of having been made in breach of natural justice. It was thus "in error" and could be set aside under s 42A(10). As authority for that proposition the applicant relied on Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 and Scott v Handley [1999] FCA 404. 62 The respondent submitted that even if, which the respondent did not admit, the refusal on 17 December 1999 to grant the adjournment was a breach of the rules of natural justice, this did not result in the application being "dismissed in error". 63 The respondent accepted that the statements made by the Full Court in Brehoi on this point did not in terms express a concluded decision on the proper construction of the subsection, but strongly supported an interpretation of the word "error" as being an administrative error on the part of the Tribunal. If the Tribunal had made a legal error in refusing to grant a further adjournment, the applicant had the option of appealing to this Court. That, so the respondent contended, was the proper avenue of redress for an applicant who considered that a decision of the Tribunal was infected by error of law. Section 42A(10) of the Act was, so it was put, clearly not intended as an additional avenue for an applicant to argue that the Tribunal had made an error of law. 64 The respondent submitted that the decision in Bhardwaj had nothing whatsoever to say about the correct interpretation of the expression "error" in s 42A(10). In Bhardwaj there had been an administrative error on the part of the Immigration Review Tribunal which the Tribunal itself took steps to remedy. The respondent pointed out that if a similar administrative error had been made by the Tribunal in this matter, it would have been able to reinstate the application pursuant to s 42A(10).
my reasoning in relation to this proposed ground 65 I think that it is useful to set out s 42A of the Act in its entirety. That is because, in my view, the context of s 42A(2) and s 42A(10) is particularly important when construing the latter subsection. The section reads as follows: "42A Discontinuance, dismissal, reinstatement etc. of application (1) Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review. (1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn. (1B) If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision. (2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, a conference mentioned in section 34, or a mediation under section 34A, held in relation to the application, or at the hearing of the proceeding, the Tribunal may: (a) if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or (b) in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding. (3) For the purposes of subsection (2), a person is taken to appear in person or by a representative at a directions hearing, conference, mediation or hearing of a proceeding if the person or the person's representative, as the case may be, participates in it by a means allowed under section 35A. (4) If: (a) a person makes an application to the Tribunal for a review of a decision; and (b) the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable; the Tribunal may dismiss the application without proceeding to review the decision. (5) If an applicant for a review of a decision fails within a reasonable time: (a) to proceed with the application; or (b) to comply with a direction by the Tribunal in relation to the application; a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision. (6) If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded. (7) Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, conference, mediation or hearing, as the case may be. (8) If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application. (9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances. (10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances." 66 Section 42A can be seen to empower the Tribunal to dismiss an application without either proceeding to review the administrative decision under challenge or, if it has commenced to review the decision, without completing the review, in five circumstances. The five circumstances can be described respectively as consent dismissal, dismissal on discontinuance or withdrawal, dismissal upon failure to appear, dismissal where the decision does not appear to be reviewable and dismissal where an applicant has failed within a reasonable time to proceed with the application. 67 All of these sets of circumstances have a common result. That is, the dismissal takes place without the Tribunal reviewing the merits of the decision, even without review on a prima facie basis of those merits. 68 In Brehoi, it is quite clear that the Full Court's observations in respect of s 42A(10) were obiter dicta. The Full Court's decision was based on the appellant's failure to demonstrate special reasons for extending the time for appealing against the decision of the primary judge. At paragraphs 23 to 29 of the Full Court's reasons, their Honours set out the legislative history of s 42A. In short, the section was inserted into the Act in 1993 to give effect to the recommendations of the Report of the Review of the Administrative Appeals Tribunal ("the Report") presented to the Attorney-General and the President of the Tribunal in November 1991. In the Report, and in the explanatory memorandum ("the Explanatory Memorandum") for the Bill explaining the clause which became s 42A(10) without debate or amendment in the Parliament, the purpose of that subsection was stated as being to provide: "… a power to vacate a dismissal where the application has been dismissed by administrative error on the part of the AAT." [The Report] And: "To reinstate an application which has been dismissed through administrative error on the part of the tribunal." [The Explanatory Memorandum]. 69 The authors of the Report had proposed that the amendment should provide that: "… the tribunal may vacate the dismissal of any application for review where such dismissal has occurred through administrative error on the part of the tribunal." 70 At paragraph 44 in Brehoi, when referring to the fact that the Tribunal in that matter had put s 42A(10) to one side the Court said that: "…that appears at first blush to have been correct, given the purpose of the enactment of that provision …". 71 Accordingly, if one were to confine one's attention to the Report and the Explanatory Memorandum, one might be inclined to read the word "error" in s 42A(10) as "administrative error". 72 The Tribunal in this matter took that course for two reasons. First, it relied upon what it described as "clear guidance regarding the correct interpretation" of the phrase "in error" provided by the Full Court in Brehoi. Secondly, citing ss 15AA and 15AB(1) and (2) of the Acts Interpretation Act 1901 (Cth), it relied upon the Explanatory Memorandum, and in particular the passage from that document which I have set out above. The Tribunal concluded that s 42A(10) is enlivened only where it appears to the Tribunal that the relevant application had been dismissed by reason of administrative error on the part of the Tribunal. As there was no evidence of any such error in the present matter, the Tribunal held that it did not have jurisdiction under that subsection to reinstate the applicant's application for review. 73 I would accept that a purpose of s 42A(10) is to provide a power to reinstate an application which has been dismissed through administrative error on the part of the Tribunal. But I would not accept that s 42A(10) must be construed as applying only where there has been administrative error. I would construe the word "error" as including administrative error but extending beyond mere administrative error. 74 I would reject the respondent's submission that when, on 17 December 1999, the Tribunal decided to dismiss the applicant's application, purportedly under s 42A(2), he was confined to the remedy of either an application for a review or an appeal to this Court. 75 The Tribunal's decision of 17 December 1999 can, in my view, be properly characterised as in the nature of a default decision. That is, in default of consideration of whether there were even any prima facie merits in the application. There do not appear to be any policy reasons why, in those circumstances, such a narrow construction should be put upon s 42A(10). 76 I accept the applicant's submission that the Tribunal, when it referred to the Explanatory Memorandum, should have had regard to s 15AB(3) of the Acts Interpretation Act, which provides as follows: "(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to: (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and (b) the need to avoid prolonging legal or other proceedings without compensating advantage." 77 In my view, there is a significant degree of desirability of persons being able to rely on the ordinary meaning conveyed by the word "error". More importantly, s 42A(10) provides a mechanism of avoiding prolonging legal or other proceedings without compensating advantage. The mechanism is a relatively informal method of bringing a matter back to the Tribunal for reconsideration with a view to it being considered on the merits. It can be seen as a convenient, prompt and inexpensive means whereby errors which may have occurred in the exercise of the Tribunal's default jurisdiction can be rectified. That is, any sort of error in dismissing an application summarily, whether the error be administrative error or any other error. 78 As a matter of construction, I would confine s 42A(10) in its operation to dismissals under s 42A itself which have been made in error, not dismissals generally. 79 During argument in the appeal there was a suggestion that it might be inappropriate for one member of the Tribunal to be asked to revisit a decision by another member of the Tribunal to dismiss an application and to rule upon the question whether such dismissal had been in error. Implicit in that suggestion is that some sort of appeal procedure was involved. I would not view s 42A(10) in that light. 80 There is ample legislative precedent for a judge or a magistrate to revisit a judgment entered by another judge or magistrate where an order has been made in the absence of a party, without requiring that party to undertake an appeal. For example, Order 35 rule 7 of the Federal Court Rules provides that even where an order has been entered, a judge may vary or set aside a judgment if the order was made in the absence of a party, whether or not the absent party was in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order. Similarly, in this State, the Supreme Court Rules provide that the Court may, on such terms as it thinks just, set aside or vary any judgment entered pursuant to Order 13 in default of appearance to a writ [Order 13 rule 10] or, pursuant to Order 14 any summary judgment given against a party who does not appear at the hearing of an application under that order [Order 14 rule 12] or to set aside or vary any judgment entered in default of pleadings pursuant to Order 22 [Order 22 rule 10]. As might be expected, there is a like provision in respect of summary judgment entered on the application of a defendant under Order 16 [Order 16 rule 4]. Similar provisions can be found in the Justices Act 1902 (WA) [s 136A] and in the Local Courts Act 1904 (WA) [s 47]. In New South Wales, broadly comparable provisions can be found in Part 40 rule 9(2) of the Supreme Court Rules, Part 13 rule 1(2) and Part 11A rule 2(3) of the District Court Rules and Part 10A rule 2(3) and Part 11 rule 1(2) of the Local Courts (Civil Claims) Rules. 81 I see no difficulties with s 42A(10) being applied by one member of a Tribunal in respect of a default decision of another member. Indeed, where an application has been made within 28 days after receiving notification an applicant may apply, pursuant to s 42A(8), for reinstatement of the application. In those circumstances s 42A(9) gives the Tribunal power, if it considers it appropriate to do so, to reinstate the application and give such directions as appear to it to be appropriate in the circumstances. In other words, the Tribunal is empowered to set aside the dismissal if it considers it appropriate to do so. 82 Accordingly, I think that the Tribunal erred in law when it held that it had no jurisdiction to reinstate the application under s 42A(10). 83 Although it is not necessary to decide the point, it may well be the case that the Tribunal could quite properly have regarded the decision of 17 December 1999 as not being a decision at all - see Gaudron and Gummow JJ in Bhardwaj at [51]. This might be on the basis that the decision had been made either without power (on the ground that the applicant had failed to appear at the hearing, when it was quite clear that he had appeared) or as one which had been made with such a degree of procedural unfairness as to involve jurisdictional error. 84 In those circumstances the Tribunal would not have needed to rely on s 42A(8) and (9) or (10). 85 I do not think that it would be futile to remit to the Tribunal the application for reinstatement. In my view, it is clearly arguable that on 17 December 1999 the application which was then before the Tribunal was dismissed in error. 86 I think that there are two bases upon which the application which was before the Tribunal on 16 and 17 December 1999 can fairly be argued as having been dismissed in error. 87 First, a transcript of the proceedings on 17 December 1999 (when the application for an adjournment was renewed) shows that the Tribunal made no attempt to investigate whether the applicant was, as he asserted through counsel, prejudiced in the preparation and presentation of his case by the late service of some 380 documents. The offer, made by the Tribunal to Mr Boccabella, to renew the application for adjournment if counsel was "caught by surprise" did not remedy what appears to me to be quite a strongly arguable case of procedural unfairness. 88 Secondly, that decision appears to have been made under the wrong subsection. This was not a case of failure to appear. The applicant was represented by counsel who appeared on both dates, seeking an adjournment. When that adjournment was refused, I think that the Tribunal had two options. It could have proceeded to hear the application in the absence of the applicant and decide it on its merits. Alternatively, it could have considered exercising its powers under s 42A(5). Whether in those circumstances, it was obliged to give notice to the applicant requiring him to proceed with the application or whether it could have summarily dismissed the application without giving notice to the applicant, is something which it is not necessary to decide in the present matter. 89 The applicant has been denied his right to a hearing of his application for a reinstatement order. In my opinion, the appeal should be allowed and the matter remitted to the Tribunal for further consideration and determination according to law.
proposed ground 2 - whether the application for reinstatement was made within time 90 Section 42A(8) relevantly provides that an application for reinstatement of an application which has been summarily dismissed pursuant to s 42A(2) may be made by the person who made the earlier application "… within 28 days after receiving notification that the application has been dismissed …". 91 The applicant submitted that although he was aware of the decision to dismiss his application, there was no evidence before the Tribunal that the applicant was notified in writing to that effect. Thus, so the applicant contended, there was no evidence before the Tribunal as to when the 28 day period would start to run. The applicant referred to s 43(3) which provides that the Tribunal shall cause a copy of its decision to be served on each party to the proceeding. 92 The respondent submitted that s 42A(8) did not require that the relevant notification be in writing in order to constitute "notification". The respondent relied, by analogy, with two Full Court decisions of this Court in relation to the former s 478(1)(b) of the Migration Act 1958 (Cth) which limited a time from the time when an applicant was "notified of the decision" of the Refugee Review Tribunal. In Long v Minister for Immigration, Local Government and Ethnic and Affairs (1996) 65 FCR 164 Jenkinson J (at 167), with whom Beazley J agreed (at 178), rejected an argument that the applicant was not notified of the decision until he was provided with a statement in writing of the decision. Their Honours concluded that oral notification of the Refugee Review Tribunal's decision to the appellants meant that each was notified of the decision within the meaning of the former s 478(1)(b). 93 The respondent pointed out that Long was followed by another Full Court in WACA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 163 at [18]-[23]. The Full Court agreed with French J at first instance that the question whether the circumstances were sufficient to constitute notification of the Refugee Review Tribunal's decision was one of fact, namely was the notification effective to enable the applicant to understand that Tribunal's decision? 94 The respondent submitted that the applicant's own evidence that he had been notified by his counsel on 17 December 1999 that his application for review had been dismissed by the Tribunal, showed that he was aware of the nature of the Tribunal's decision (i.e. dismissal of his application pursuant to s 42A(2) of the Act). This was evident, so the respondent contended, from the applicant's evidence that "some days later" he spoke to his counsel and they discussed several options including an application to the Tribunal for reinstatement. 95 In the alternative, the respondent submitted that there was no error on the Tribunal's part in inferring, in the absence of documentary evidence, that the Brisbane Registry of the Tribunal had, in accordance with standard Tribunal practice, given such written notification to the applicant or his representatives shortly after the Tribunal's decision. The applicant had not raised as an issue or given any evidence to the effect that he or his representatives had not received such a written notification from the Tribunal. 96 Finally, the respondent submitted that we should dismiss the appeal on the basis that to set the Tribunal's decision aside and remit the matter to it would be futile. 97 This was because even if the application for reinstatement had been made within time, the Tribunal could not, as a matter of law, "consider it appropriate" to reinstate the application. The relevant sections, ss 42A(8) and (9) were, so the respondent argued, concerned with an applicant's failure to appear at the hearing which might be found to be excusable: Brehoi at [27]. The respondent submitted that the present case was not one where the applicant had intended to appear at the hearing but was prevented from doing so by some reason beyond his control. Rather, after Mr Boccabella's second request for an adjournment was refused by the Tribunal on 17 December 1999, the applicant deliberately chose, so the respondent contended, not to appear at the hearing either in person or by his counsel. In those circumstances, to seek reinstatement of the application on the basis that the Tribunal erred in law in refusing the further request for an adjournment, would in effect amount to an appeal against that decision. The appropriate avenue to challenge the Tribunal's decision was an appeal or an application for judicial review to this Court. Accordingly, it would not be "appropriate" for the Tribunal to reinstate the application on the basis that the Tribunal had erred in law.
my reasoning in relation to proposed ground 2 98 In my opinion, in view of my conclusion in relation to the first ground, it is strictly not necessary to consider this ground. 99 However, I consider that what was held by the Full Courts in Long and WACA applies to the circumstances of this matter. The applicant's own evidence was that he had been notified by his counsel on 17 December 1999 that his application for review had been dismissed by the Tribunal. In my view, on those authorities (with which I respectfully agree), that oral notification constituted notification within the meaning of s 42A(8). 100 Counsel for the applicant also took us to s 3(4) and (5) as implying that the Act contemplates and requires written notification. In my view, those two subsections are deeming provisions which do not preclude notification being effected in an alternative manner. Counsel for the applicant submitted that s 43(3) of the Act which obliges the Tribunal to cause a copy of its decision to be served on each party to the proceeding implied that notification of its decision had to be written. For the same reasons as given in Long and WACA, I would reject that submission. 101 I do not think that this ground has been made out.
Conclusion 102 For the foregoing reasons I would: · extend the time in which to appeal to 14 February 2002 (being the date on which an amended proposed notice of appeal was lodged); · allow the appeal; · remit the applicant's application for reinstatement of his application for review of the decision of the respondent's delegate on 27 May 1997, to the Tribunal for consideration in accordance with the law; and · order that the respondent pay the applicant's costs of the appeal. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.
Solicitor for the Applicant: Messrs Chrstie & Strbac
Solicitor for the Respondent: Australian Government Solicitor
Goldie
Minister for Immigration & Multicultural Affairs
(1996) 65 FCR 164
(1984) 3 FCR 344
(1993) 45 FCR 441
(1993) 40 FCR 244
[2002] HCA 11