Kumar v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant seeks review of a decision of the respondent made on 14 April 1988 and communicated by letter of 21 April 1988. The application is brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). Section 5(1) of that Act provides that a person who is aggrieved by a decision to which the Act applies may apply to the Court for an order of review in respect of the decision on one of the various grounds set out in that subsection. 2 It is common ground that the decision in question is one to which the ADJR Act applies. However, under section 11(1)(c) of the ADJR Act an application to the Court for an order of review must be lodged within the prescribed period or within such further time as the Court, whether before or after the expiration of the prescribed period, allows. Under section 11(3) the prescribed period is relevantly 28 days after the making of the decision. 3 Prima facie, therefore, the application, which was lodged on 1 November 1999, is very much out of time. However, there was lodged with the application, and filed at the same time, a notice of motion seeking an order that the applicant be allowed further time for the lodgement of the application. I have before me the notice of motion seeking that extension of time, together with the substantive application. 4 The case is unusual in the sense that the Minister concedes that the decision sought to be reviewed contains an error of law and that the merits of the substantive application are strong. The Minister, however, opposes the grant of any extension of time because the delay is so great and is without adequate explanation. 5 Thus, in effect, the sole question for my determination is whether an extension of time should be granted. If time were extended, then the decision would be set aside and remitted to the decision-maker for further consideration according to law. I should observe that no concession is made as to the likely outcome of any such reconsideration. 6 The decision in question was made under the Migration Act 1958 ('Cth') ("the Migration Act")in its form in 1988. The applicant is a citizen of Fiji and is of Indian ethnicity. He was born in Fiji on 6 November 1963 and came to Australia on 3 October 1987 with his wife. He said that due to the military regime resulting from Colonel Rabuka's coup, Fijian Indians were being attacked by indigenous Fijians and were having their rights taken away. The applicant also said that he was not receiving any protection from the Government in Fiji. 7 On 4 October 1987, just over a month after arriving in Australia, the applicant lodged an application with the Department of Immigration ("the Department") for resident status in Australia. On 9 February 1988 the Minister's delegate notified the applicant that it had been decided that the claims that he had advanced did not constitute "strong compassionate or humanitarian grounds" to warrant the grant of permanent resident status. As a result the application was refused. 8 The reference to "strong compassionate or humanitarian grounds" is an allusion to the provisions of section 6A(1) of the Migration Act as it was then in force. That provision was relevantly in the following terms: "6A(1) An entry permit shall not be granted to an immigrant after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say - ……………………… (e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him." 9 The letter of 9 February 1988 notifying the decision contained the following passage: "The following claims under section 6A(1)(e) have been carefully considered are: i) The military coups in Fiji and their effect on Fijian Indians, and in particular your own family. ii) Your employment prospects in Australia and the availability of better medical services. iii) Your possible inability to emigrate from Fiji and the delays and cost of returning and going through normal migration channels." 10 On 26 February 1988 the applicant submitted a request for reconsideration of the decision communicated by the letter of 9 February 1988. The request was accompanied by a three page statement which appears to have been signed by the applicant. Amongst other things the application was accompanied by newspaper articles and memoranda. That may have some bearing on a matter to which I shall refer shortly. 11 On 17 March 1988 a Departmental statement was prepared concerning the refusal of resident status. Under the heading "Comments on Claims" the following appeared: "The appeal has added nothing substantial to that information originally considered by the Department. The appellant has repeated and elaborated on claims of a generalised nature in relation to the situation of Indian Fijians. He acknowledges that he and his family have not been directly affected in such a way as the many examples of discrimination he has quoted nor that they have been singled out for discrimination - he considers this irrelevant. This factor however is of the utmost relevance in considering applications based on humanitarian grounds. Departmental policy requires that applicant's [sic] are able to demonstrate that, unlike the majority of the population, they have been singled out as being of specific interest to the authorities and consequently targets for discrimination or persecution. The appellant as good as recognizes this by acknowledging that Australia cannot be expected to absorb a substantial proportion of the Indian Fijian population. The Department agrees with this point and notes that if it were to grant resident status in this case it would arguably be obliged to offer the same concession to many thousands of other disenchanted but otherwise ordinary Indians in Fiji seeking to migrate or gain residence in Australia. The appellant seeks to counter balance this factor by reason of his family's particular 'plight' and because he is already in Australia. In response, the Department does not consider that the appellant has established that the plight of his family is different from that of the majority of the Indian population in Fiji. Moreover, section 6A(1) of the Migration Act was designed to restrict the grant or residence to persons who enter Australia as temporary entrants to certain limited categories and was not intended to give unfair advantage over those who apply for migration through established channels overseas. On the basis of the appellant's claims it is clear he would not have been approved for migration on compassionate or humanitarian grounds had he applied overseas and there is no reason why a decision in Australia should be different. ……………………… The Department maintains that the appellant has not established strong compassionate or humanitarian grounds to warrant the grant of resident status. It is not considered unreasonable to expect him to honour the terms of his visitor entry and leave Australia." 12 The recommendation was as follows: "A review of the application confirms the decision by the primary decision maker to be fair and correct. Legislation and policy have been properly applied and merits of the case have been taken into consideration. Claims advanced in the Request for Review have been examined but are not considered, either individually or collectively, to be sufficiently strong to warrant approval of the application as a special case outside policy. It is recommended the primary decision of refusal be maintained." 13 On 30 March 1988 the Immigration Review Panel made a recommendation to the Minister in the following terms: "After considering the matters raised in the appeal, the Panel has concluded that the circumstances of this case are not such as to warrant special treatment and recommends that the Departmental decision be maintained and explained." (The Panel's own emphasis.) The Ministerial decision was that the Departmental decision be maintained. That decision was made on 14 April 1988. 14 On 21 April 1988 the Department wrote to the applicant referring to the request for review, and saying inter alia as follows: "The request for review has been considered, but the refusal decision has been maintained. The review was conducted by the Immigration Review Panel, which examined the requirements of relevant legislation and Government policy and considered all the available evidence. The Panel took into account the particular circumstances of your case, including the information given in your request for review and in a report provided by the Department. The Panel's unanimous recommendation is that the refusal decision should be maintained. ……………………… Enclosed papers set out relevant policy issues and explain the reasons for the decision. They will help you to understand why the refusal decision has been maintained. ……………………… You are now required to depart Australia upon the expiry of your current temporary entry permit. The staff responsible for enforcement of the Migration Act in your area are being notified and will monitor your departure." 15 It is not entirely clear what the "enclosed papers" were, but it appears from the material produced in response to an application under the Freedom of Information Act 1982 (Cth)that it included the recommendation to the Minister. 16 The applicant said in his affidavit in support of the application that he had a lawyer representing him, Mr Bernard Goldin of Box Hill, Melbourne. The affidavit said that Mr Goldin lodged the appeal to the Immigration Review Panel but did not give the Panel the newspaper reports that had been supplied to him by the applicant to support his case. That appears to be erroneous since the material, including newspaper reports, are attached to an affidavit sworn on behalf of the applicant by his solicitor and filed in the proceedings 17 The applicant then went on in his affidavit to say that his lawyer was not a specialist in immigration law. He said that at no stage did his solicitor tell him that he had a legal right to appeal the decision to the Federal Court or to the High Court. Instead the solicitor told him that he had to go back to Fiji and try to apply from Fiji. The solicitor said that he would look after the applicant's case. 18 The applicant said that he was very disappointed about the result because of what he had been through in Fiji and because of what was happening to Fijian Indians there. He said he was so scared of having to return to Fiji because of the attacks that had taken place on Fijian Indians that he decided to stay in Australia. That appears to have been a conscious decision by the applicant to remain in Australia, believing that had no right to do so. 19 There is no evidence of any further contact between the applicant and the Department prior to 1998. I draw the inference from the absence of any evidence as to those matters that there was in fact no relevant communication between the applicant and the Department. 20 The next relevant event occurred in March 1998. The applicant says that in March 1998 he went to see Mr Nigel Dobbie of Parish Patience, the solicitors presently acting for him. They filed the application and the notice of motion presently before me. The applicant said that he went to see Mr Dobbie: "to join the class action in the Federal Court of Australia which I had seen advertised in a local newspaper". That was a reference to proceedings commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth), being Macabenta v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 202. The proceedings related to sub-class 850 and 851 visas which were categories created under the Migration Regulations (Amendment)1997 (Cth). Those visas were made available only to persons who had lawfully entered Australia before certain specified dates and who were citizens of, and usually resident in, Kuwait, Iraq, the former Yugoslavia, Sri Lanka, the People's Republic of China or Lebanon, immediately prior to such entry. 21 Persons who met the relevant criteria, and who applied for the relevant visa, were permitted to remain in Australia either permanently or for an additional temporary period under the terms of the visa. In Macabenta, the appellants challenged the legality of the criterion that limited the visas to persons from those six countries. If those proceedings had been successful, it was believed that the applicant would have been entitled to apply for, and may have been granted, a sub-class 850 visa. Accordingly, on 23 March 1998 the applicant completed before Mr Dobbie an application for such a visa. That application was presented to the Department but was rejected as being invalid. 22 At the same time Parish Patience took up the cudgels on behalf of the applicant with the Department once again. On 23 March 1998 Parish Patience wrote to the Department saying: "We act for the abovementioned [referring to the applicant] and are instructed to lodge our clients' reconsideration of their application for a transitional permanent visa having regard to the provisions of the Migration Act 1958 pre- 19 December 1989, in particular, the provisions of Section 6A. A detailed supporting submission will be forwarded to the Department of Immigration once the relevant information and documentation has been obtained." 23 No supporting submission was forwarded. However, on 27 May 1998 a further facsimile was sent by Parish Patience to the Department saying: "We act for the abovementioned and refer to our clients' reconsideration of their application for a transitional permanent visa having regard to the provisions of the Migration Act 1958 pre- 19 December 1989, in particular, the provisions of Section 6A. To date we have not received confirmation from DIMA that their application is being reconsidered. Please confirm same. Once we have received such confirmation, we will be able to advise our clients accordingly." 24 On 3 July 1998 the applicant's solicitors again wrote to Parish Patience saying: "We act for Mr Kumar and his family and lodge our client's reconsideration of his application for a transitional permanent visa having regard to the Migration Act 1958 pre- 19 December 1989, in particular the provisions of Section 6A. We request that you forward to our office a letter of confirmation acknowledging that Mr Kumar's application for reconsideration has been received and is being processed. Once we have received the letter of confirmation we will be able to lodge a submission in support of the application." 25 That elicited a response dated 17 July 1998 from the Department relevantly saying as follows: "I refer to your request for reconsideration of your Grant of Resident Status (GORS) decision. The Department will not reconsider your original GORS decision. It is a principle of efficacy in administrative decision making that decisions should not be challenged long after they have been made, when evidence is often not available. ……………………… Please note that you are not entitled to a review of the decision not to reopenyour GORS application." 26 Nothing then happened for approximately nine months when Parish Patience wrote again to the Department on 21 April 1999. That letter relevantly provided as follows: "We act for Mr Kumar and his family and lodge our client's reconsideration of his application for a transitional permanent visa having regard to the provisions of the Migration Act 1958 pre- 19 December 1989, in particular the provisions of section 6A. We note that we made a similar request on 27 May 1998. On 15 July 1998 [sic] your office refused to reconsider our client's GORS application. DIMA stated that a principal [sic] of efficacy in administrative decision making means that decisions should not be challenged long after they have been made, when evidence is not available. We refer to Yusuf Rizal v The Minister 1999 FCA 334 dated 30 March 1999. We note that in that case, the applicant's solicitor wrote a letter to the Department on 1 September 1998 requesting reconsideration of the applicant's GORS decision. The Department of Immigration initially refused to reconsider the GORS decision, citing the same principal [sic] as stated to our client in its letter dated 15 July 1998. The applicant then appealed to the Federal Court of Australia. However, before the matter went to hearing, the Department of Immigration decided to reconsider the applicant's GORS decision. We further note that our client's case has merit if it is reopened: The Department of Immigration and the Immigration Review Panel appear to have refused Mr Kumar's application on the basis that the problems that he would have had if he had to return to Fiji would be no more severe than those persons living in Fiji at the time the decision to refuse his application was made. The error of law that occurred was that the relevant decision makers should have considered whether, in the particular circumstances of Mr Kumar's case, Mr Kumar and his family had made out humanitarian grounds to remain permanently in Australia. Damouni's case involved an application similar to that of Mr Kumar's in that it involved humanitarian grounds under section 6A(i)(e). In Damouni's case the Federal Court of Australia confirmed the error of law as stated above. We respectfully request that Mr Kumar's GORS application and the decision taken in relation to that application be reconsidered." 27 I will make reference shortly to the decision in Damouni v Minister for Immigration, Local Government & Ethnic Affairs (1989) 87 ALR 97. In the meantime on 21 April 1998, in the Macabenta proceedings, a single judge of this Court found that the criterion in question in respect of the sub-class 850 visa was valid - see Macabenta v Minister for Immigration & Multicultural Affairs (unreported, Tamberlin J, Federal Court, No NG 887 of 1997, 21 April 1998). The consequence was that a person who entered Australia from a country other than the six named countries was not entitled to lodge an application for such a visa. An appeal from that decision to the Full Court was dismissed on 18 December 1998 and on 20 June 1999 the High Court refused a grant of special leave to appeal from the decision of the Full Court. 28 Mr Dobbie says that on 29 June 1999 he was instructed to make the further application to the Department. 29 On 29 June 1999 Parish Patience sent a further facsimile to the Department saying as follows: "We act for Mr Kumar and his family and lodge our client's reconsideration of his application for transitional permanent visa ……………………… We request that you forward to our office a letter of confirmation acknowledging that Mr Kumar's application for reconsideration has been received and is being processed. Once we have received the letter of confirmation we will be able to lodge a submission in support of the application." 30 The letter was, of course, in identical terms to that of 3 July 1998. On 22 July 1999 Parish Patience sent a further facsimile to the Department saying: "We refer to our facsimile dated 9 July 1999 and received at your office on 9 July 1999 in relation to our client's reconsideration of his application for a transitional permanent visa… ……………………… We request that you forward to our office a letter of confirmation acknowledging that Mr Kumar's application for reconsideration has been received and is being processed. Once we have received the letter of confirmation we will be able to lodge a submission in support of the application." 31 Despite inquiry, there was no evidence before me of a facsimile dated 9 July 1999. On 3 August 1999 the Department responded to the letter of 21 April 1999 saying as follows: "I refer to your letter of 21 April 1999 concerning Mr Kamal Kumar. My apologies for the delay in replying. The matters raised in your correspondence have been considered, however the decision not to accept a request for reconsideration of the refusal of a Grant of Resident Status decision is maintained. Your client should now make contact with the Compliance Branch of this department at this office to discuss his immigration status in Australia." 32 After receipt of the communication from the Department of 3 August Mr Dobbie spoke to the applicant and then received instructions from the applicant to seek judicial review of the original decision of 1998. This application was then lodged on 1 November 1999. 33 It is against that background that I must consider the application for extension of time within which to make the application for an order for review of the 1988 decision. It is common ground that the principles to be applied in a case such as this are fairly summarised in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344. At 348-9 Wilcox J summarised a number of principles. I shall deal with each separately. The first is as follows: "Although [section 11 of the ADJR Act] does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so. The 'prescribed period' of twenty-eight days is not to be ignored... Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained… It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time…" 34 Some explanation has been afforded by the applicant in this case. No challenge was advanced to the proposition that the applicant was not familiar with the Australian legal system such as to be aware of any right that he may have to seek review of the decision made in 1988. His evidence as to his position was not challenged. On the other hand, the evidence does not go so far as to say that the question of an appeal was even considered by the applicant. 35 The applicant does not say that he consulted his solicitor and asked what rights of review might be available. He simply says the solicitor did not tell him that he had a legal right to appeal. It may be, of course, that a client in the position of the applicant would be entitled to assume that his legal adviser would explain to him his rights and the alternatives that were available to him. I do, however, find the evidence in a somewhat unsatisfactory state. There is no evidence of any attempt to communicate with Mr Goldin to find out what lay behind the advice that he gave to the applicant that he should go back to Fiji and try to apply from Fiji. As I have already said, the Minister accepts that the decision was affected by an error of law. 36 The decision to which reference was made in the applicant's submission of 21 April 1999 was a decision of French J in Damouni. That decision was made after the decision presently under review, of course. French J observed at page 102 that the term "strong compassionate or humanitarian grounds" did not appear to have been the subject of any reported judicial consideration. He then went on to say at 103: "The consequences of a decision for the family and other persons whose fortunes are closely linked to those of the applicant lie within its purview. And the fact that many other persons may be in a like predicament to that which faces or threatens the applicant, is not, in my opinion, sufficient to take the case out of the class of those eligible for consideration under the paragraph. The word 'strong' does not impose a requirement that the grounds must be special or peculiar to the applicant, although there may be circumstances where that is a relevant consideration." 37 Observations in relation to the effect of section 6A(1)(e) were also made by this Court in Sinnathamby v Minister for Immigration & Ethnic Affairs (1986) 66 ALR 502. Burchett J in dissent made the following observation at 516: "Section 6A(1)(e) does not require an applicant to suffer uniquely. There may be 'strong compassionate or humanitarian grounds for the grant of an entry permit' to an applicant who happens to be able to apply, because already outside his country, though thousands of his compatriots are desperately situated, but cannot even apply. The plight of German Jews in 1938 provides a ready illustration." 38 On the basis of those decisions and subsequent decisions, in particular Goundar v Minister for Immigration, Local Government & Ethnic Affairs (1994) 54 FCR 300 at 305-6, the Minister's concession concerning in this case the error of law appeared to have been well made. The question which I am considering, however, is whether in all the circumstances the applicant has shown an acceptable explanation of the delay, at least until the application was made in March 1998 for reconsideration. 39 The inference that I would draw from the material available to me is that the applicant was not properly advised. On the other hand, I do not draw the inference that the applicant sought advice and was given incorrect advice. Rather, the applicant accepted the decision of the Minister or the Minister's delegate and was not advised that he might have a right of review. 40 However, the period from March 1998 to date involves two further areas of concern in relation to delay. In none of the correspondence in 1998 was mention made of any error of law. No submission was made notwithstanding that in the first facsimile of 23 March 1998, Parish Patience said that a detailed supporting submission would be forwarded once the relevant information and documentation had been obtained. No explanation has been offered as to what steps were made to obtain that information and why no detailed supporting submission was, in fact, forwarded. 41 Some explanation is available concerning the lack of action by reason of the applicant's completing an application for a sub-class 850 visa. However, that, of course, was a completely alternative route whereby the applicant may have been able to remain in Australia. It had nothing to do with pressing any claim concerning an erroneous decision made in 1988. 42 It was not until 21 April 1999, more than 12 months after the applicant first approached Parish Patience that the question of an error of law in the decision made in 1988 was first raised with the Department. Even then, it appears, that the decision to write on 21 April 1999 was prompted by the decision of this Court in Rizal v Minister for Immigration & Multicultural Affairs [1999] FCA 334. That is to say, what appears to have prompted the further request for reconsideration was the publication of reasons indicating that, at least in that case, the Minister was prepared to reconsider an application for the grant of resident status. 43 The Department was not particularly diligent in responding to the application of 21 April 1999, the response not being given until early August. Even then, some months elapsed before this application was made. There has been no explanation, at all, for that last delay. Nor do I regard the existence of the class action challenge as being a particularly acceptable explanation of delay, quite apart from the fact that the original application for reconsideration in March made no reference to the error of law. 44 The second matter to be considered was summarised by Wilcox J in Hunter Valley Developments at 348-349 as follows: "Action taken by the applicant other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision…and a case where the decision-maker was allowed to believe that the matter was finally concluded... The reasons for this distinction are not only the 'need for finality in disputes'… but also the fading from memory problem that might arises." 45 The circumstances that I have already adverted to are relevant to this consideration. It was not until the letter of 21 April 1999 that any suggestion was made that the original decision was flawed. The application in March 1998 was simply for reconsideration. It was not a challenge to the decision as such. 46 The third consideration referred to by Wilcox J in Hunter Valley Developments at 349is as follows: "Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension..." 47 That is not a relevant consideration in the present case. The Minister has not suggested that there has been any prejudice in decision-making by reason of the delay. Wilcox J goes on to say at 349: "[T]he mere absence of prejudice is not enough to justify the grant of an extension… In this context, public considerations often intrude... A delay which may result, if the application is successful, in the unsettling of other people… or of established practices… is likely to prove fatal to the application." Again, it is not being suggested that such a consideration is relevant in the present case. 48 Next, Wilcox J observed that: "The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted…" As I have already indicated, the Minister concedes that the decision under consideration was, in fact, infected by an error of law and that if an extension of time were granted, then the decision would be set aside. 49 Finally: "Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion." Once again, it has not been suggested that this consideration would have any part to play in the present circumstances. 50 There is, thus, a balancing exercise that I am called upon to undertake. On the one hand is the very serious concern of maintaining the integrity of Commonwealth administrative decisions. A decision that is accepted was affected by an error of law ought not to stand, unless the decision is of such long-standing that it would be unfair to interfere with it. I add that there is no concession that the decision was wrong. 51 On the other hand is the equally desirable objective of finality in relation to administrative decisions. 52 The inference that I consider should be drawn from the matters that I have outlined is that, for whatever reason, the applicant accepted the decision made in 1988. It may well be that he was not given a full explanation as to his rights. On the other hand, there is no evidence that he sought such an explanation. 53 He was advised that he should return to Fiji and make an application from Fiji and that his then solicitor would look after his case. The explanation for ignoring that advice is understandable, that is that he was concerned that return to Fiji might place him and his family in some danger. However, even when further legal advice was sought, it was not so obvious that an error of law had been made as to prompt Parish Patience in 1998 to point out the error of law to the Department. 54 As French J observed in Damouni, there had been no decision on the meaning of section 6A(1)(e). His Honour made no reference to the observations made by Burchett J in Sinnathamby three years earlier. It is possible that Mr Goldin considered the question of whether or not there was a right of appeal, but concluded that there was not. It is, of course, easy to be wise after the event, with the benefit of the decisions that have been given in the last ten years. However I am not convinced, simply because Mr Goldin was not a specialist in immigration law, that at the time he overlooked what was an obvious error of law. The evidence suggests, rather, that the applicant simply accepted the decision of 14 April 1988. 55 I regard this as a difficult case. It is highly desirable that decisions of the Commonwealth administrative service be made according to law. On the other hand, decisions once made should not be interfered with after a long period of time except in accordance with the established principles laid down by Wilcox J in Hunter Valley Developments. 56 It may be appropriate for the Minister to examine circumstances in which decisions have been made otherwise than according to law. However, I am not satisfied in the present circumstances that the time within which an application can be made for review of the decision should be extended. It follows that I would dismiss the motion. It also follows that the substantive application is out of time and should be dismissed as incompetent. 57 This proceeding has been brought about because of an erroneous decision. Certainly an application should have been made at the time and, had an application for substantive review been made at the time, of course, this application would not have been necessary. Nevertheless, it seems to me this may be a case where there ought be no orders to costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.