Mitchell, Graham Bruce v Minister for Immigration & Ethnic Affairs [1983] FCA 260

OF AUSTPALIA ' WESTERN AUSTRALIA ' DISTRICT PEGISTRY
GENEP2L DIVISION }

Respondent ORDER JUDGE M2KING ORDER : Toohey J. DATE OF GRDER : 30 September 1983 WHERE MADE H Perth

THE COUPT ORDERS THAT the application be dismissed.

I THC CECEFSL IFT ' OD AUITP-LIA ' Uo. WAG 15 ef 1285 VESTER ss lRALA ' CLETEICL PEGTIE: ' SEVEPSL GL TSLOT ' PETHWCOE Tl:

This is an application for an extension of time in which to file and serve a notice of appeal froma decision of the Administrative appeals Tribunal delivered 29 July 1983. affirming the decisicen of the respondent that the applicant be deported from

Section 44(1) of the Administrative Appeals Tribunal Act 1375 enables a party to a praceeding before the Tribunal to appeal ta the Federal Court "on a question of Law" from the Tribunal's decision, Sub-section /2A) requires an appeal to be instituted not later than the 728th day after the day on which a document setting out the terms of the decision is furnished to the person

se the time of the deersion the applicant was in emplotiwent and be remained so until 24 September when he was taken

tnto custody tor the purposes of deportation to New Zealand.

The applicatson for an extension af time was supported by an affidavit Py che applicant', solicitor in which the only csason vffered for the failure fo lodge notice of appeal within

'T am also instructed that since the 29th dav oof duly 1983 the applicant herein has been attempting to orqanize finances for the purpose of instituting an appeal avainst the said decision made and delivered on the 29th day of July 1983 of His Honour Mr. Justice J.D. Davies".

When the matter came betore me yesterday morning I expressed my dissatisfaction that the affidavit deposed neither to facts within the personal knowledge of the deponent nor to facts

of which he had been intormed and in which he expressed a belief.

I therefore adjourned the matter until yesterday afternoon to allow the applicant an opportunity to give oral

The testamony of the applicant was that following the decision his soliciter rang him with the result and that he 'the applicant'? told the solicitor he wished to appeal. The solicitor chen sent the applicant a copy of the decision asking him to note those matters of which he complained. The applicant did so and by

mid Auqust or thereabouts had returned the decision with notes to

lide selacitut Yhe applicant said he was net aware wf any time Limit uithin which to appeal and assumed that his solicitor would

The arfidavit sworn by the applicant's solicitor might well be understood to mean that no appeal was instituted because the applicant did not provide the necessary funds. This was not the applicant's account which. to some extent, placed the blame at

But even the applicant's evidence was vaque. He must have been aware that some time limit was involved and even if he thought the matter was being attended to by his solicitor. he seems to have shown little interest once he returned the papers.

The explanation might well be that suqgested by his counsel

yesterday morning, that he was hoping that the respondent might

I approach the application on the basis that the applicant "has to satisfy the Court that justice requires that that default of his shall be overlooked, and he must satisfy the Court that there 15 some reasonable kind of explanation or excuse for his neglect of the rules" (Cullen C.J. 1n Morres v. Papuan

Fubber and Trading Co. Erd. (19124) 14 SR(NSW) 141 at p.144,

approved in Bishop v. The Queen 1982) 58 FLR 233 at p.235).

In the rather confusing and conflicting state of the evidence 1 am not satisfied that there is a reasonable explanation

or excuse for the failure to file a notice of appeal within time.

Furthermore, un my view, the proposed notice of appeal dues nat brianna the applicant within s.44/1) of the Act, wn Fhat he

The netice of appeal Formulates as the question of law be be gaised "That the Learned Judae was wrong in law in deciding bo axercise his discretion to affirm the said decision to deport

The question of Law is amplified in a number of grounds, each of which alledqes that the Trylbunal "was wrong in law". But an examination of those grounds shows that they do no more than complain that the Tribunal failed to give weight to certain matters, In so far as conclusions are attacked. they are quite

The one around, ground (b). which may on its face be said to involve a question of law is. as counsel for the applicant sonceded, misconceived. Ik attacks a findina that the applicant was net present in Australia for 5 years before the commission of the offence giving rise to the deportation order, "in that the evidence was to the contrary". But as counsel acknowledged, the evidence entirely supported that finding.

In referring to the question of law said to be raised by the appeal and to the grounds of appeal. I do not in any way usurp the function of an appellate court. I merely seek to enquire

ahether there 1s in truth an appeal on a question of law. For if

theres is mone, ait strengthens my view that the application should

mol zucceed. I am satisfied that even on the broadest the disvussion in Tabay v. Minister for Immigration Affairs 1282) 45 ALR 705) the appeal envisaged is

explanation or excuse for the failure to comply with s.44(2A) of

I certify that this and the four preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey