CONSIDERATION
19 There is no doubt that Mr Turaga was actually informed as to his appeal rights. They were set out in the Tribunal's letter to him of 12 April 2010 and advised him clearly that he could appeal the Tribunal's decision at the Federal Court within a 28 day period after he received a copy of the decision.
20 The delay is extreme. Mr Turaga is, effectively, seeking extension of time of more than six years from the Tribunal's decision within which to bring his appeal. Although there is no evidence on the precise circumstances of Mr Turaga in that period, it is clear from what he has said that the combination of incarceration following some criminal conviction (which satisfies the requirements of the Migration Act) and detention in immigration detention have consumed most of that time. However, this does not mean an appeal could not be lodged years earlier than it was. There is no explanation for some sudden realisation as to the entitlement to appeal, and even if there was, the excessive period of time would make it an exceptional case if leave were granted. There are some cases where the amount of time involved is so excessive, without adequate explanation, that that alone will be sufficient to preclude an extension of time being granted, even if there are arguable grounds of appeal. But as will be seen, in this instance, the appeal grounds are simply not arguable. I will come to the grounds shortly. As noted by McHugh J in Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 (at [13]-[16]) (footnotes omitted):
[13] In Gallo v Dawson, I said that the grant of an extension of time under O60 r6 is not automatic. This is as true of an application for constitutional relief under s75(v) as it is in respect of an appeal. I also said that, when the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. A similar inquiry must be made when the application is for an extension of time in which to commence s75(v) proceedings to quash an act, decision or judgment. A "case would need to be exceptional" before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration.
[14] In this case, the Full Bench gave its orders on 19 February 1999 and delivered its reasons for the decision on 16 April 1999. The applicant did not file his notice of motion in this Court until 21 July 2000. Assuming that the time limits in r17 and r30 of O55 of the High Court Rules apply when constitutional relief is sought against the AIRC and that his delay is reasonably explained - which I very much doubt in this case - I would not grant the applicant an extension of time. For the reasons that I give below, the applicant has not been able to advance even an arguable case of jurisdictional error by the Full Bench.
[15] An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.
[16] Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
(emphasis added)
21 McHugh J had adopted a similar course in earlier proceedings in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (at 553-554) where his Honour said that (footnote omitted):
A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
22 In the present instance, the period for compliance or the limitation period stipulated by the legislature in order to strike a balance between the competing interests of a prospective appellant and a prospective respondent is 28 days. Where an applicant has delayed in commencing proceedings for some six years, it would require an extraordinary or exceptional case before an extension of time should be granted. I accept the Minister's submission that such periods of limitation do not exist only to bar actions that would fail on the merits in any event. If an 'arguable' case is sufficient to outweigh a very lengthy delay, then limitation periods are deprived of any meaningful effect. They would become simply an additional bar to cases that would fail regardless of the limitation time. As such, the time limits would do nothing more than produce additional but ultimately pointless legal arguments, the only effect of which would be to increase costs. There is no doubt, as observed by McHugh J in Brisbane South Regional Health Authority, a limitation period or a time limit may operate so that a good cause of action is defeated. The government, as well as citizens, is entitled to have certainty and finality in dispute resolution. Granting an extension of time after six years, other than in a most extraordinary case would completely defeat that objective. Nonetheless, in such an application, as well as any other application for extension of time, the usual considerations apply. It is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for parties if an extension of time is to be granted or refused: Gallo v Dawson (1990) 93 ALR 479. But generally speaking, the longer the delay, the more persuasive the explanation needs to be: see also Tran v Minister for Immigration and Border Protection [2014] FCA 533 per Wigney J (at [38]).
23 In this case there is no persuasive explanation for a delay of six years.
24 In any event, when the prospects of success in the appeal are considered, there is no doubt that the Tribunal's evaluation of the time period was correct. The Tribunal was also correct to say that it does not have jurisdiction to deal with Mr Turaga's application for review in circumstances where it was lodged out of time.
25 The short point is that Mr Turaga has excluded the weekends in the computation of time. This is not the correct approach, except with one exception. Mr Turaga was notified of the delegate's decision to cancel his Partner visa on 19 March 2010 (this is common ground). For the following reasons any application for review of the delegate's decision to cancel the visa had to be lodged with the Tribunal by Monday, 29 March 2010. There is no provision in the Migration Act for the Tribunal to grant any extension of that strict nine day time limit. Nine days from 19 March 2010 fell on 28 March 2010, which was a Sunday. The effect of s 36(2) of the Acts Interpretation Act 1901 (Cth) is that if an act is required to be carried out on a weekend, it is to be treated as being required to be carried out on the next business day, which in this instance was Monday, 29 March 2010. That was the last day for filing the application for review. It was not in fact filed until 31 March 2010. Therefore, the Tribunal had no jurisdiction. It is clear under the Acts Interpretation Act that the nine days is nine actual calendar days (with the exception I have identified in s 36(2)), not nine business days as Mr Turaga appears to contend. Whether this was to do with the delay in the prison mailing system or some other reason is a topic on which there was no evidence whatsoever or any argument. The time period was not wrongly computed by the Tribunal. The consequences of that were correctly identified by the Tribunal.
26 It may seem somewhat curious that while the Migration Act provides for this Court and the Federal Circuit Court of Australia to extend time in relation to filing (which is exactly what this application is at present) there is no such power in the Tribunal to extend time. The consequence is that some time limits for bringing applications in the Tribunal (of various kinds, depending on the application) cannot be enlarged by the Tribunal. The consequence of this is that if a person fails to file within time for whatever reason, including reasons that did not include the person's fault, he or she is left only with either judicial review of the delegate's decision (as distinct from the Tribunal's decision) or, in the present instance, to seek the exercise of the Minister's non-compellable powers to reconsider the decision. But the Tribunal was right in concluding there it simply had no power to extend the statutory period.