JESSUP J
4 Before the court is an application for an extension of time, pursuant to O 52 r 15(2) of the Federal Court Rules, within which to file and serve a Notice of Appeal from a judgment of the Federal Magistrates Court of Australia given on 31 May 2007. The time limited for the lodgement of an appeal was 21 days. The present application for an extension of time was filed on 2 October 2007, ie about 14 weeks after the expiration of time for an appeal.
5 The question which arises is whether there are special reasons for the applicant to have leave to file a Notice of Appeal, within the meaning of O 52 r 15(2). In Jess v Scott (1986) 12 FCR 187, 195, the Full Court said:
What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.
The question in the present application, therefore, is whether there are circumstances which take the case out of the ordinary run of cases in which an appeal should be filed within 21 days.
6 The background to the application is as follows. The applicant entered Australia in May 1997 on a student visa under the Migration Act 1958 (Cth) ("the Act"). In March 2000, he applied for a Partner (Temporary) (Class UK) visa. That application was based on what the applicant claimed to be a spousal relationship with his nominator, Ms Nina Tran, whom he married in December 1999. A delegate of the respondent Minister rejected the application in May 2002. The applicant applied for a review by the Migration Review Tribunal ("the Tribunal"), and, by a decision given on 15 September 2003, the Tribunal affirmed the decision of the delegate.
7 By an application filed in the Federal Magistrates Court on 27 October 2005, the applicant sought judicial review of the decision of the Tribunal. The applicant relied upon three grounds. First, it was said that the Tribunal failed to take account, or took no real account, of the children which he had had with Ms Tran. Secondly, it was said that the Tribunal denied the applicant procedural fairness, constituted by failing to treat the children as a primary consideration and to give the applicant adequate notice that it intended to do so, and by failing to give the applicant written notice of the material before the Tribunal which was capable of being a reason, or part of the reason, for affirming the decision under review. Thirdly, it was said that the Tribunal failed to carry out its statutory duty as set out in s 359A of the Act, ie to give the applicant particulars of any information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review, and to ensure that the applicant understood why.
8 In a judgment given on 31 January 2006, the Federal Magistrates Court dismissed the applicant's application. The reasons why it did so are important. It held that the Tribunal had not complied with s 359A of the Act, in that it had placed significant weight upon certain information set out on the departmental "arrival cards" which related to the applicant, but had not given the applicant written particulars of that information, or ensured that he understood why it was relevant. In accordance with authorities which were binding on the Federal Magistrate, his Honour took the view that the Tribunal had erred in point of jurisdiction, and continued:
The fact that I have found a jurisdictional error to my mind indicates that it would be inappropriate to find that the application is not competent under the provisions of sub-section 477(1)(a) of the Act.
It seems that the reference to s 477(1)(a) must have been a typographical error in his Honour's reasons, since subs (1) applied not to the Federal Magistrates Court, but to the Federal Court. The provision which applied to the proceedings before his Honour was subs (1A) of s 477, which, at the relevant time, provided as follows:
An application to the Federal Magistrates Court under section 483A for:
(a) a writ of mandamus, prohibition or certiorari; or
(b) an injunction or a declaration;
in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision.
Although not articulated in terms, manifestly his Honour had in mind the judgment of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, in which it had been held that a failure to comply with a provision relevantly indistinguishable from s 359A amounted to jurisdictional error, and that a decision made in such circumstances was not a "privative clause decision" for the purposes of Pt 8 of the Act.
9 Having found jurisdictional error on the part of the Tribunal, and having effectively held that s 477(1A) did not provide for a time within which an application of the relevant kind had to be made, the Federal Magistrate turned his attention to the question of the applicant's delay in filing his challenge to the decision of the Tribunal as a possible basis for the refusal of relief on discretionary grounds. His Honour held that the applicant's delay, to the extent that it was not properly explained, was of such an order as to justify refusing to grant relief under the constitutional writs, as a matter of discretion. It was that conclusion which led to the dismissal of the applicant's application.
10 The applicant appealed to this court and, on 23 May 2006, the appeal was allowed by consent upon the ground that, before making its orders on 31 January 2006, the Federal Magistrates Court had not given the applicant notice that his application might be dismissed, not because it was out of time under the Act or any other relevant provision, but as a matter of discretion, given the nature of the remedies which the applicant then sought.
11 The applicant's application for judicial review of the original decision of the Tribunal was heard again by the Federal Magistrates Court on 14 December 2006. According to the reasons for judgment given by the Federal Magistrate on 31 May 2007, the parties agreed that the only issue for determination by the court was a reconsideration of the question of delay "in the context of exercising the court's discretion as to whether to grant relief to the Applicant". The Federal Magistrate thereafter dealt with the case not as one to which s 477(1A) of the Act, or any analogous provision, applied, but as an application made within time, but involving a very considerable delay after the making of the decision sought to be reviewed.
12 In his Honour's reasons for judgment published on 31 May 2007, the Federal Magistrate again dismissed the application before him on discretionary grounds, by reason of the applicant's delay in commencing proceedings. His Honour's reasoning appears in the following paragraphs, which should be set out in full:
17. I am satisfied that the Applicant delayed in commencing these proceedings and delay is a ground for refusal to grant relief on a discretionary basis. The decision was made on 15th September 2003 and the Applicants therefore are deemed to have been notified on 22nd September 2003. The application was not filed at the Federal Magistrates Court until 27th October 2005. That is a delay of more than two years.
18. It is clear that a part of the reason for the delay is the decision by the Applicant's former solicitors to seek the exercise of the Minister's discretion rather than, apparently, seek judicial review of the decision of the Migration Review Tribunal. The application for the exercise of the Minister's discretion was made on 11th December 2003 and the Minister decided not to exercise that discretion on 16th December 2004. Thus, there is an explanation of sorts for 53 weeks' delay.
19. I am inclined to accept the submission by Mr Turner for the Applicant that this does not indicate an intention to accept the Tribunal decision but a step to challenge the decision in the wrong forum. The letter from the Applicant's then solicitors includes a section headed "Issues at the Migration Review Tribunal" which can be seen to challenge some of the Tribunal's findings.
20. Nevertheless, after the Minister rejected the application for discretion on 16th December 2004, the Applicant took no other steps until he filed his application for judicial review on 27th October 2005, with the aid of his present solicitor. There is no explanation given as to why no application for judicial review was made between 22nd September 2003, when the Applicant was deemed to have been notified, and the submission to the Minister seeking the exercise of s.351 discretion on 11th December 2003. Again, there is no explanation why it took from 16th December 2004 until 27th October 2005 to file an application for judicial review.
21. Whether or not the Court accepts the application for the exercise of Ministerial discretion as an explanation for part of the delay, there is still no explanation for the balance of the delay, which totals nearly another twelve months. This case is clearly about whether or not the Applicant has explained the delay in commencing proceedings. It is surprising, therefore, that there is no evidence from the Applicant himself about this issue. In the ordinary course of events I would have expected that the Applicant would have set out an explanation in an affidavit, upon which he could have been cross-examined.
22. As it is, the Applicant has not given any evidence on this issue. It is well established that the unexplained failure by a party to call a witness or tender documents and other evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case (Jones v Dunkel (1959) 101 CLR 298). In this case there is a failure by the Applicant to give or provide evidence going to the explanation for the delay.
23. In my view, the failure by the Applicant to give evidence either orally or by affidavit leaves a significant delay without any explanation. I am satisfied that in the exercise of the Court's discretion relief should be denied because of the unwarrantable and unexplained delay by the Applicant.
13 In the draft Notice of Appeal which accompanied the applicant's application for an extension of time to appeal, the applicant proposed to rely upon a single ground, namely, that the Federal Magistrate erred in finding that the applicant had delayed between 15 September 2003 and 27 October 2005 in the lodgement of his application for judicial review. This ground was a reference to pars 17 and 20 of the reasons of the Federal Magistrate, set out above. Particularising his ground, the applicant asserted that he did not attend the Tribunal to receive its decision, and did not have the decision personally served upon him. In the circumstances, according to the applicant, he had never been notified of the decision as required by the Act. That being so, there was no starting point by reference to which the Federal Magistrate was entitled to find that the applicant had delayed in making his application for judicial review.
14 In the hearing of the application in this court, counsel for the applicant dealt with two issues: the merits of the proposed appeal and the explanation for his client's failure to lodge an appeal in time. Because of the attention that was given to the first of these issues by counsel for both parties, I propose to deal with it below. However, I should make it clear why I do so. It is hard to see how the good prospects of a proposed appeal should of themselves be regarded as constituting "special reasons" for the purpose of O 52 r 15(2). The provision is concerned with reasons justifying a departure from the ordinary rule that an appeal must be lodged within 21 days, not with reasons for anticipating a successful outcome on the part of the appellant. However, the apparent weakness of an intending appellant's prospects might often be included amongst the considerations by reference to which the discretion under r 15(2) is not exercised in favour of him or her. That is to say, it will often be appropriate for the court to regard the apparent existence of reasonable prospects on the proposed appeal as a necessary, but not as a sufficient, condition for the grant of leave to file a notice of appeal out of time.
15 In the context of that caveat, I turn to the question of the merits of the ground upon which the applicant would seek to challenge the judgment below. It was effectively common ground that the applicant had received (by post) actual notification of the Tribunal's decision in the days following 15 September 2003. It was also common ground (and the applicant swore in his affidavit of 25 September 2007) that he did not attend the Tribunal to receive the decision on the date of its publication (15 September 2003), and that the decision was not personally served upon him.
16 Both in his draft notice of appeal and in the written outline of submissions filed on his behalf, the applicant contended that the case was covered by the terms of s 477(1) of the Act, in the form in which that subsection was considered by the Full Court in Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565. At the time, s 477(1) required an application for judicial review under s 476 of the Act to be made within 28 days "of the actual (as opposed to deemed) notification of the decision". The Full Court held that "actual notification" occurred only when a decision was given by hand to the person concerned.
17 In the Minister's written submissions filed in this court, it was pointed out that, at the time of the decision of the Tribunal in September 2003, the relevant provision was not the one which was considered by the Full Court in SZKKC. Rather, it was contended that the relevant provision was subs (1A) of s 477, set out above. Undoubtedly, at the relevant time, the Act did contain s 477(1A) as submitted on behalf of the Minister, but a premise for the application of that provision in the circumstances of the present case was, necessarily, that the decision sought to be challenged was a "privative clause decision". As explained above, in his first judgment given on 31 January 2006, the Federal Magistrate held, or effectively held, that the decision of the Tribunal in the present case was not a "privative clause decision". Indeed, in oral submissions made before us, counsel for the Minister so contended (thereby implicitly abandoning the reliance upon s 477(1A) which had been foreshadowed in the Minister's written outline).
18 As appears from the foregoing, there was a degree of confusion in the parties' identification of the statutory provisions which prescribed time limits within which the applicant was required to mount a jurisdictional challenge to the decision of the Tribunal. However, it seems clear that the parties conducted their cases before the Federal Magistrate upon the basis of a bilateral acceptance of the correctness of his Honour's earlier conclusion that the Tribunal had failed to comply with s 359A of the Act, that its decision was not, therefore, a privative clause one and that s 477(1A) (mistakenly referred to by his Honour as s 477(1)(a)) had no application.
19 The question then arises: from where did the Federal Magistrate obtain the proposition that the applicant was "deemed to have been notified on 22 September 2003"? Counsel for the Minister submitted that this was a reference to s 379C(4) of the Act, which provided as follows:
(4) If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or
(b) in any other case - 21 days after the date of the document.
Counsel for the applicant did not propose that his Honour had any other provision in mind when he referred to deemed notification.
20 Section 379C of the Act applied where the Tribunal gave a document to a person by one of the methods specified in s 379A of the Act. That section, in turn, was introduced by subs (1) as follows:
(1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA).
Section 368B(6) of the Act provided that a decision of the Tribunal, including one of the kind with which we are presently concerned, must be given to the applicant in question within 14 days after the day on which the decision is handed down, by one of the methods specified in s 379A. The "method" which was said to be relevant to the present circumstances was that set out in subs (4) of s 379A, namely:
(4) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.
If the provisions discussed above in fact applied in the present case, the Federal Magistrate would have been correct to observe, as he did in par 17 of his reasons, that the applicant was taken (or "deemed" as his Honour said) to have been notified on 22 September 2003.
21 However, counsel for the applicant drew our attention to the circumstance that, at the time of making his application in the Tribunal, the applicant had nominated his solicitor as an "authorised recipient" for the purposes of s 379G of the Act. Subsection (1) of that section was in the following terms:
(1) If:
(a) a person (the applicant) applies for review of an MRT-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
When it notified the applicant of its decision on 15 September 2003, the Tribunal did so by way of a letter addressed to the applicant "C/-" his solicitor, at her address. A copy was also sent to the applicant himself, at the address known to the Tribunal. As mentioned above, it is common ground that a copy of the decision of the Tribunal came into the possession of the applicant by one, or both, of these forms of communication.
22 Counsel for the applicant relied upon s 379G(1) of the Act, and upon a judgment of the Full Court with respect to a relevantly indistinguishable provision, s 494D(1), in VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570. In that case, the appellant had nominated his sister as an "authorised recipient". Notification of a decision of a delegate of the respondent Minister had been sent by mail addressed to the appellant himself, care of his sister. The Full Court held, for the purposes of s 494D, that the notification had not been given to the authorised recipient and that, therefore, time did not run by reference to the actual sending of the letter in question. It was submitted on behalf of the applicant in the present case that the facts were indistinguishable from those in VEAN, and that it should be held both that s 379G was mandatory and exclusive and that the notification of the decision of the Tribunal had not been given to the applicant's authorised recipient, as required by that section.
23 Counsel for the applicant relied also upon Lee and Ors v Minister for Immigration and Citizenship and Anor (2007) 159 FCR 181. In that matter, it was held that information given by the Tribunal by way of a letter sent to him care of his authorised agent (ie in the same way as the letter in VEAN had been sent) was not given by one of the methods specified in s 379A of the Act and was not, therefore, a sufficient provision of information for the purposes of s 359A(2) of the Act. The Full Court's reasoning was effectively the same as that in VEAN, namely, that, where a person had nominated an authorised agent under s 379G of the Act, it was mandatory that documents be given to that agent, rather than to the person, and that the letter in the case had been sent to the person, rather than to the agent.
24 Relying upon VEAN and Lee, counsel for the applicant submitted that the decision of the Tribunal had never been regularly given to the applicant, and that the applicant was not, therefore, taken to have received the document as would otherwise have been provided by s 379C(4) of the Act. He submitted that the Federal Magistrate's implicit reliance upon that provision in pars 17 and 20 of his Honour's reasons was in error. It followed, according to counsel, that his Honour was likewise in error when he concluded that the applicant had delayed by more than two years before making his application for judicial review.
25 At this point it is necessary to return to the relevant parts of the reasons of the Federal Magistrate, which I have set out in par 12 above. His Honour was substantially, and properly, concerned with the question whether the applicant had provided an acceptable explanation for his delay. The only explanation provided, it seems, was that, on 11 December 2003, the applicant applied for a ministerial substitution of a more favourable decision for the decision in fact made by the Tribunal in his case. The Minister was empowered to make such a substitute decision under s 351 of the Act. It was not until 16 December 2004 that the Minister made a decision (unfavourable to the applicant) under s 351. The Federal Magistrate accepted that this provided "an explanation of sorts" for some 53 weeks of the applicant's delay. However, again taking the date (22 September 2003) when the applicant was deemed to have been notified of the decision of the Tribunal, his Honour observed that there was no explanation for the applicant's delay between then and 11 December 2003, or for the delay between 16 December 2004 and 27 October 2005.
26 It seems clear that the actual length of the unexplained delay was a significant factor in the discretionary decision by the Federal Magistrate to refuse the applicant the constitutional remedies which he sought. His Honour did not refer to the actual receipt of the Tribunal's decision by the applicant. Rather, he referred, twice, to what he took to have been the deemed notification of the applicant. In this respect, there seems to be apparent merit in the applicant's ground of appeal. His Honour appears to have taken the view that, when exercising such a discretion, recourse could be had to the deemed notification provisions of s 379C(4) of the Act. If that provision did operate in the circumstances, there may have been a question whether the discretion to refuse one of the constitutional writs was properly exercised on the ground of delay merely by reference to the deemed, rather than the actual, notification of the decision sought to be impugned to the person otherwise entitled to the remedy. This point was not agitated before us, doubtless because of the fact, of which the Federal Magistrate was manifestly aware, that the applicant had in fact received a copy of the decision of the Tribunal at about the time that he would have been taken to have received it by the operation of s 379C(4). However, the better point for the applicant, and one that his counsel did press, was that, because of the mandatory terms of s 379G(1) of the Act, s 379C(4) did not come into operation at all in the circumstances of the present case.
27 It seems eminently arguable that the exercise of the Federal Magistrate's discretion miscarried because of the significance which his Honour placed upon the period of the applicant's unexplained delay. As I have said, it seems that that period was calculated by reference to the assumed operation of s 379C(4). In the circumstances, I am prepared to hold that the applicant's proposed ground of appeal would have reasonable prospects. I do not, therefore, consider that the present application can be dismissed upon the basis that any appeal would be unlikely to succeed.
28 I turn next to consider the other matter about which counsel for the applicant made submissions before us, namely, whether the applicant has provided an acceptable explanation for failing to lodge a notice of appeal within the 21 days prescribed by O 15 r 2 of the Rules of Court. As with the circumstances which faced the Federal Magistrate, the only explanation proffered on behalf of the applicant was that, after the publication of the Federal Magistrate's judgment, he requested the Minister to substitute a decision more favourable to him than that of the Tribunal. He did that on 21 June 2007 (ie on the last day upon which he might have regularly lodged an appeal), and received an unfavourable response by letter dated 30 August 2007. His application for an extension of time was made a little over a month later again.
29 I do not think that the applicant's approach to the Minister under s 351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant's present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of "Plan B" to which resort was had once the approach under s 351 proved unsuccessful.
30 This is not a case in which the applicant intended to appeal, but misunderstood the nature of his obligations, or in which there was a slip-up or oversight in the office of his solicitors. The applicant was legally represented throughout, and it could hardly be doubted that the very nature of the proceedings before the Federal Magistrate would have made him, or at least his representatives, keenly aware of the significance of time limits. Be that as it may, the fact is that there is no evidence before the court which would make inappropriate the inference, which I would draw, that the applicant and his advisors, being fully conscious of the time limit provided by the Rules of Court, chose not to appeal within that time.
31 The applicant has otherwise pointed to nothing that would amount to "special reasons" for the purposes of O 52 r 15(2) of the Rules of Court. For reasons explained earlier, I do not think it is sufficient merely that the applicant is able to point to a case of some apparent prospects on appeal.
32 It should not be assumed that, had there been some factor in the present case which did take it out of the ordinary run in the way described in Jess v Scott, I would necessarily have concluded that there were "special reasons" for the purposes of O 52 r 15(2). As the Full Court said (12 FCR at 195), such a factor may, but need not, distinguish a case sufficiently to justify that conclusion. In the present case, the Federal Magistrate was manifestly conscious of the nature of the discretion which he exercised (ie that it related to the kind of remedies sought rather than to any statutory time limit). The applicant did in fact receive the Tribunal's decision in the days following 15 September 2003. With full knowledge of the terms of that decision, he delayed by more than two years before challenging it on jurisdictional grounds. In this respect, I am disposed to think that the Federal Magistrate was more than normally forgiving in his holding that the applicant's recourse to s 351 of the Act provided "an explanation of sorts" for his lengthy delay. Although we have not heard argument on the point, there is much to be said for the view that the exercise of a ministerial power under s 351 presupposes the existence of a valid, intra-jurisdictional, decision by the Tribunal. If so, perhaps the applicant's recourse to that section should be seen not as him exhausting his administrative remedies to challenge the decision of the Tribunal (generally a legitimate course for a party contemplating proceedings for a constitutional writ) but as him opting for a remedy that was inconsistent with any such challenge. However these considerations may be, whether or not after the application of some discount factor to the applicant's 2-year delay, there appears to have been no substantial injustice produced by the Federal Magistrate's conclusion the applicant's delay was sufficient to disqualify him from the discretionary remedies which he sought.
33 For the above reasons, I would dismiss the application with costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.