Administrative Law - natural justice - departmental summary seriously misleading - one side had no knowledge of report - no fault of decision-maker - whether decision-making process seriously defective or irregular.

Federal Court - right of appeal from interlocutory orders - whether orders of primary judge final.

Administrative Decisions (Judicial Review) Act 1977, s.11(1)(c) Federal Court of Australia Act 1976, s.24

Solicitors for the appellant: Messrs Bayly and O'Brien

Solicitors for the respondent: Australian Government Solicitor

The time within which the appellant may commence proceedings under the Administrative Decisions (Judicial Review) Act 1977 seeking an order to review the decision to make the deportation order of 17 February 1988 be extended until 28 July 1989.

The respondent pay the costs of and incidental to the appeal, to be taxed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

In these proceedings an order made by a single judge rejecting an application for an extension of time to commence proceedings under the Administrative Decisions (Judicial Review) Act 1977 is challenged by way of appeal. The appellant, a citizen of the United States of America, sought the extension for the purpose of obtaining an order to review a decision of a delegate of the respondent ordering his deportation from Australia. The application was made to the primary judge under s.11(1) of the Administrative Decisions (Judicial Review) Act 1977. It is common ground that the applicant was well out of time to commence proceedings under the Administrative Decisions (Judicial Review) Act and it is unnecessary to set the relevant provisions out in full. It is enough to say s.11(1) requires the application to be lodged within the prescribed time "or within such further time as the Court (whether before or after the expiration of the prescribed period) allows". Here, the prescribed period elapsed 28 days after 18 March 1988, that is, on 15 April 1988 and the application for an extension of time was not filed until 29 August 1988.

2. The case was argued on the assumption that a disappointed applicant for an extension of time has, in a case of this sort, a right of appeal. Because s.24 of the Federal Court of Australia Act 1976 accords no such right as to interlocutory orders, counsel for the appellant contended that the order of the primary judge was final, a view the respondent did not challenge. The appellant's argument was accordingly not developed, but is not easy to reconcile with the decision of the High Court in Hall v. The Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423. That concerned a Tasmanian statute empowering the Supreme Court to grant an extension of the time allowed for commencing proceedings against a nominal defendant in a motor vehicle case. A majority of the Court was of the view that an order refusing an extension was interlocutory; see p 440 (Taylor J.), p 444 (Windeyer J.) and p 447 (Owen J.). Although the reasons disclosed a consciousness that the test applied there was not a broad one, the same approach was taken in Carr v. Finance Corporation of Australia Limited [1981] HCA 20; (1981) 147 CLR 246, where it was held that an order of the Supreme Court refusing to set aside a default judgment did not finally dispose of the rights of the parties. We cannot presently see any ground for declining to apply Hall's case to applications of the kind here in question. As the matter was fully argued as on an appeal and we have come to the conclusion that, for a reason which does not appear to have been fully put to the learned primary judge, an extension of time should have been given, we propose to grant leave and allow the appeal.

3. The primary judge took the view, which was accepted by the respondent before us, that the appellant had advanced a reasonable explanation of his delay, namely that he was in custody awaiting trial when the deportation order was served on 17 February 1988, and the solicitor then acting for him told him there was no point in seeking to challenge the deportation until after the trial. The judge would have had "little hesitation in granting the extension sought" if the matter turned solely on the reasonableness and accuracy of that explanation and the question of prejudice. He rejected the application for an extension of time on the ground that the applicant had "disclosed on the material, no basis for holding out any hope that he might succeed on a substantive application".

4. It was common ground before us that it is proper to take into account, in an appropriate case, whether or not the application for an order of review has any real chance of success. We accept the correctness of that assumption. In doing so, however, we are not to be taken as deciding that prospects of success must always be considered when determining whether to extend time under s.11(1)(c). Nor do we think that it is likely to be necessary, on such an application, to conduct a full and detailed examination of the merits a substantive application would have, if allowed to be brought cf. Lucic v. Nolan (1982) 45 ALR 411 at p 417; Hickey v. Australian Telecommunications Commission [1984] FCA 176; (1983) 47 ALR 517 at p 523; Hunter Valley Developments Pty Ltd v. Minister for Home Affairs and Environment (1984) 58 ALR 305 at p 311. Further, in considering the ultimate prospects of success, one should bear in mind the observations of Megarry J. in John v. Rees (1970) Ch 345 at p 402, that "the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change".

5. The major argument which was raised was that, so the appellant's counsel said, the judge was wrong in his assessment of the prospects of success. It was argued that his Honour should have held the appellant to have had good prospects on two points: firstly, that the reasons for decision by the delegate gave a misleading account of what might be described as the appellant's immigration history; secondly, that the reasons gave insufficient weight to the circumstance that the appellant had an Australian citizen child. We find it necessary to deal with the former point only.

6. The learned primary judge was given, by counsel for the applicant, a document setting out proposed grounds of review. They were elaborated in argument before the judge. In this Court, the appellant's counsel focused attention on matters by no means identical with those advanced below, in support of the suggestion that the substantive application would have merit; the respondent did not contend that the points taken were not available to be argued in this Court.

7. As we have mentioned, the first point was based on the account of the appellant's immigration history given in the reasons. They were furnished on 18 March 1988 by the delegate who made the deportation order. The reasons said that the delegate based his decision on a submission and annexures thereto and, to put it briefly, accepted the findings and reasoning in that submission. The first point attacks the fairness and accuracy of paragraphs 15 and 16 of the "Assessment" part of the submission, which read as follows:

"15. Mr Barrett is a prohibited non-citizen

pursuant to sub-section 7(3) of the Migration

Act 1958 in that he is the holder of a

temporary entry permit which has expired and

no further entry permit applicable to him has

been issued or come into force since. He has

committed an offence under the Migration Act

in becoming a prohibited non-citizen. He is

also criminally recorded in Western Australia.

16. It would be open to you in the first instance

to grant Mr Barrett a further temporary entry

permit. However you may consider such a grant

inappropriate in the face of his breach of

migration law and criminal convictions. He

came to Australia for a two month visit,

applied for resident status which was refused

on 13 November 1987 and is still in Australia.

You may take these matters into account and

decide against the grant of a further

temporary entry permit."

8. The most substantial criticism made of these paragraphs was that they gave a misleading account of the appellant's position, in that he had permission to remain in this country until November 1987 and from January 1988 on was in custody. It appears to us that the submission gave a wrong impression of the extent to which the appellant's stay in this country had been unlawful. We have noted that para.15 just quoted says the appellant held a temporary entry permit, which had expired, and that he had no further entry permit, that para.16 refers to his "breach of migration law" and that para.A(4) (not quoted here) mentions that he last arrived in Australia on 27 October 1986 and was granted a two-month entry permit on arrival, subject to the condition "employment prohibited".

9. The recent migration history of the appellant appears to be as follows:

18.11.86 Application for resident status.

20.11.86 Department's response. It said the appellant is

permitted to remain in Australia until a decision

is made.

5. 2.87 Departmental approval to engage in employment.

17. 2.87 Application for permanent residence approved "in

principle only". The letter said again that the

appellant was "permitted to remain in Australia

until the decision is made on your application".

13.11.87 Application rejected.

30.11.87 Department writes to appellant requesting further

information about application for permanent

residence.

23.12.87 Appellant given further time in which to "appeal"

to the Immigration Review Board against rejection

in view of claim that he did not receive letter

informing him of rejection.

22. 1.88 "Appeal" lodged - out of time.

17. 2.88 Deportation order.

10. It should be added that on 16 June 1987 the appellant was sentenced to six months imprisonment for certain offences mentioned below. It does not appear on what date that imprisonment ceased, but he was imprisoned again on other charges, being apprehended on 29 January 1988 as a prohibited non-citizen "at the East Perth lock-up".

11. To summarise the appellant's immigration status from November 1986 to the date of the deportation order (17 February 1988), throughout most of that period he had permission to work and was in the position of being an applicant for permanent residency status. His application had not been dealt with, but he had permission to stay in this country in the meantime. Further, from 17 February 1987 on he was staying as a person whose application for permanent residence had been approved in principle.

12. The contention, then, that paragraphs 15 and 16 were rather misleading has some strength, added to by the circumstance that departmental documents tending to dispel the effect of what was there said were not annexed to the submission. In particular, the letters of 20 November 1986 and 17 February 1987 giving permission to remain were left out; the latter approved in principle the application for permanent resident status.

13. As to the lack of reference to the appellant's having been in custody, that is referred to twice in the submission papers, but is not mentioned in paragraph 16, as it might have been, as a partial explanation for the appellant's not having left the country after his application for permanent residence was rejected on 13 November 1987; however, that seems to be a relatively minor matter, considered by itself.

14. The legality of decisions made on incorrect or incomplete information has been considered on a number of occasions, most recently by the Full Court in The Minister of State for Immigration, Local Government and Ethnic Affairs v. Pashmforoosh (unreported, Davies, Burchett and Lee JJ., 28 June 1989, pp 9-13). We refer also to some additional authorities. In Sezdirmezoglu v. Acting Minister for Immigration and Ethnic Affairs [1983] FCA 267; (1983) 51 ALR 561 at 573, Smithers J. said:

"... relevant facts actually known to the Department

which were favourable to the applicant were not

disclosed to the Acting Minister. The case for

remitting the matter for further consideration is

therefore a strong one."

15. In Videto v. Minister for Immigration and Ethnic Affairs [1985] FCA 449; (1985) 8 FCR 167, the decision-maker was not given information of a kind comparable with that in the present case and Toohey J. said:

"If an officer of the Department withholds

information from the Minister or his delegate, it

is no answer to a complaint that the decision-maker

failed to take into account a relevant

consideration to say the matter was not before him.

That information was constructively before him."

(p 179)

16. Lastly, in Minister for Aboriginal Affairs v. Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at p 31, Gibbs C.J. remarked:

"But if the Minister relies entirely on a

departmental summary which fails to bring to his

attention a material fact which he is bound to

consider, and which cannot be dismissed as

insignificant or insubstantial, the consequence

will be that he will have failed to take that

material fact into account and will not have formed

his satisfaction in accordance with law."

In the same case, Mason J., with whose reasons Dawson J. agreed, said:

"It would be a strange result indeed to hold that

the Minister is entitled to ignore material of

which he has actual or constructive knowledge and

which may have a direct bearing on the justice of

making the land grant, and to proceed instead on

the basis of material that may be incomplete,

inaccurate or misleading. In one sense this

conclusion may be seen as an application of the

general principle that an administrative

decision-maker is required to make his decision on

the basis of material available to him at the time

the decision is made. But that principle is itself

a reflection of the fact that there may be found in

the subject-matter, scope and purpose of nearly

every statute conferring power to make an

administrative decision an implication that the

decision is to be made on the basis of the most

current material available to the decision-maker."

(p 45)

17. It is true that, as the reasons of Mason J. in that case emphasised, failure to take into account a relevant consideration is not vitiating unless the consideration was one which the decision-maker was bound to take into account (p 39). In the present case, however, it is arguable that the appellant was denied rights the law accords to him, in that a decision was made to deport him on the basis of a submission which was, in an important respect, misleading.

18. We would add that it may be that where the decision-maker acts substantially upon a departmental submission which is not communicated to the other side, the decision is vitiated if that submission is seriously misleading as to the facts. That may be argued to be such a "fundamental flaw in the decision making process" (R. v. Secretary of State; Ex parte Al-Mehdawi (1989) 2 WLR 603 at p 611) as to make the decision bad on the ground that the decision making process was, even if through no fault of the decision-maker himself, "seriously defective or irregular", to use an expression adopted by the Court of Appeal in the case just mentioned.

19. It is evident that where a decision is to be made largely on the basis of an ex parte submission to the decision-maker, particular care must be taken to ensure that, at least on major points, facts running counter to the thrust of the submission are not omitted.

20. It is, however, unnecessary to go further in this case than to hold, as we do, that the point as to paragraphs 15 and 16 of the submission is one of substance and sufficiently arguable to warrant the conclusion that an extension of time should not have been refused on the ground that there was no arguable point in the case. Since, as we have mentioned, it was held below and not contested before us that the appellant had advanced a reasonable explanation of his delay in commencing proceedings, the appellant must have an extension of time.

21. We would add that we have not overlooked that there is material before the Court, as there was before the decision-maker, reflecting adversely upon the appellant's character. He married an Australian woman in 1985 and is said to have a child of that marriage, but seems to have displayed no interest in that child. He has an illegitimate child in the Phillipines and last year his then de facto wife became pregnant by him. He has been convicted in 1987 of charges of cultivating cannabis, of assault occasioning bodily harm and of breaking and entering with intent; none of these convictions produced a prison sentence, but in 1988 he was convicted on charges of sexual assault and deprivation of liberty and sentenced to six months imprisonment. A number of other charges have been brought against him and their fate is unclear. It may well be that although he has an Australian wife and child, the appellant has no substantial chance of obtaining permission to remain in this country; if he succeeds in obtaining an order remitting the matter for reconsideration, that may turn out to be a futility from his point of view. Nevertheless, we have somewhat reluctantly concluded that the process whereby the decision to deport him was made was, quite arguably, unlawful and that he should have been allowed an extension of time to file a substantive application.

22. It will be ordered, therefore, that leave to appeal be granted, that the appeal allowed with costs and that the time within which the appellant may commence proceedings under the Administrative Decisions (Judicial Review) Act 1977 seeking an order to review the decision to make the deportation order of 17 February 1988 be extended until 28 July 1989.