Madafferi v Minister for Immigration & Multicultural Affairs

· On 11 July 1996, Mr Madafferi applied for a spouse visa to enable him to remain in Australia.

· On 3 June 1997, a delegate of the respondent refused Mr Madafferi's application for a spouse visa.

· On 7 June 2000, the AAT set aside the decision under review and remitted the matter back to the respondent "for reconsideration in accordance with a direction that the applicant is not to be refused a visa on character grounds solely on the basis of information presently available to the respondent".

· On 18 October 2000, the respondent personally decided pursuant to s501A of the Migration Act 1958 (Cth) ("the Act") to refuse Mr Madafferi a spouse visa.

· On 31 October 2000, Mr Madafferi commenced a proceeding in this Court (V839 of 2000) in which he sought judicial review of the decision of the respondent of 18 October 2000.

· On 1 December 2000, Mr Madafferi commenced a proceeding in the High Court of Australia (M137 of 2000) in which he has sought to raise certain questions of law with respect to certain decisions of delegates of the respondent and the respondent personally.

3 It may seem somewhat surprising that Mr Madafferi would seek to appeal a decision of the AAT which was, on its face, favourable to him. The point of the application for an extension of time within which to appeal is to focus the attention upon the fact that Mr Madafferi was allegedly entitled to a spouse visa in accordance with a submission that was not put to the AAT and which leaves no room for the Minister to act under s501A of the Act. 4 It was contended on his behalf that at the time Mr Madafferi applied for a spouse visa he should have been granted a visa in accordance with the relevant applicable regulations. It was submitted that in accordance with Reg 820.211(3) of the Migration Regulations 1994, Mr Madafferi was a person who was engaged to be married to an Australian citizen when he entered Australia. This was said to be the effect of an arrangement between the respective families of Mr Madafferi and his spouse. It was pointed out that someone in Mr Madafferi's position did not need to satisfy the public interest criteria referred to in sub-rule 4001. Sub - rule 4001(2) provided that: "An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa." 5 Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") permits a party to a proceeding before the AAT to appeal to this Court on a question of law from any decision made in that proceeding. A twenty-eight day time limit for an appeal is provided but the Court has a discretion to extend that limit; see s44(2A)(a) of the AAT Act. 6 The factors pertinent to the exercise of the Court's discretion to allow the relevant extension of time are not in dispute. The first of them is that the applicant must give some acceptable explanation for the delay. An appeal should have been instituted by early July 2000. It is not surprising that it was not instituted as the decision of the AAT was favourable to Mr Madafferi. It was only after the respondent's decision of 18 October 2000 that Mr Madafferi's advisers searched for other alternative methods by which Mr Madafferi could attempt to remain in Australia. This occurred in circumstances where the respondent had announced his intention on 24 July 2000 to consider making a decision under s501A of the Act. 7 Counsel for Mr Madafferi submitted that between 7 June 2000 and 18 October 2000 his client had a reasonable expectation that the respondent would accept the decision of the AAT and that from 18 October 2000 he was "concerned to preserve his presence in Australia". 8 In my opinion, there was no reasonable explanation given for the delay in seeking to appeal the decision of the AAT. Such an appeal was never considered by Mr Madafferi or his advisers until current counsel was retained towards the later part of last year. 9 Another pertinent factor is the consideration of other action taken by the applicant to contest the decision. No such action was taken. The AAT decision was accepted by Mr Madafferi as a victory for him. As far as he was concerned, it was the respondent who was seeking to disturb the decision. 10 The most relevant of all other pertinent factors is the consideration of the merits of the proposed appeal. In my opinion, the proposed appeal is unlikely to succeed. Even if it is accepted that Mr Madafferi entered Australia whilst engaged to be married and that he otherwise was able to rely on Reg 820.211(3), the respondent was nonetheless entitled to act in accordance with s501H of the Act and refuse to grant a visa in accordance with s501 of the Act if Mr Madafferi did not pass "the character test" referred to in s501 of the Act. It must be borne in mind that s501H of the Act was enacted after Reg 820.211(3) was made and in terms gives the respondent an additional power to refuse to grant a visa. 11 Taking into account the absence of any reasonable or acceptable explanation for the delay in seeking to appeal the decision, the likely poor prospects of success of the appeal and the futility in the appeal proceeding in light of the powers available to the respondent under s501H of the Act, it is my view that the application for leave to extend the time within which to appeal the decision of the AAT should be dismissed. 12 Before dealing with the orders the Court will make, I pause to deal with one subsidiary matter. Mr Madafferi also sought to challenge the AAT decision on the basis of alleged denials of procedural fairness in the running of the application. If such denials of procedural fairness can be established they were inconsequential as Mr Madafferi succeeded before the AAT. 13 The Court orders as follows: 1. The application for an extension of time within which to institute an application by way of appeal from the decision of the Administrative Appeals Tribunal be dismissed.

2. The applicant pay the respondent's costs of and incidental to the application.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Counsel for the Respondent: Mr R Tracey QC with Ms H Simon SC

Solicitor for the Respondent: Australian Government Solicitor