Jones v The Minister of State for Immigration & Ethnic Affairs [1995] FCA 745

CATCHWORDS

PRACTICE AND PROCEDURE - Federal Court Rules - application to single judge seeking extension of time for filing notice of appeal to Full Court - time limit expired four and a half months before application - further application to amend originating application for order of review at first instance - those proposed amended grounds intended as the grounds for the proposed appeal - whether special reasons shown - whether single judge exercising appellate power has power to grant leave to amend originating application.

Federal Court of Australia Act 1976 (Cth) s.25(2)

Federal Court Rules Order 52 r.15(2)

Re Coles and Ravenshear [1907] 1 KB 1

Hunter Valley Developments Pty Ltd v. Cohen (1984) 3 FCR 344

Jess v. Scott (1986) 12 FCR 187

Waterhouse v. Deputy Commissioner of Taxation (unreported, Fox J., Judgment No. 417/1986, 16 September 1986)

Thomas Borthwick & Sons (Pacific Holdings) Ltd v. Trade Practices Commission (1988) 18 FCR 424

James Currie v. The Queen (unreported, Full Court, Judgment No. 862 of 1992).

Mahfoud v. Minister for Immigration (unreported, Beazley J. Judgment No. 443/1993, 5 July 1993)

Seiler v. Minister for Immigration (1994) 48 FCR 83

Teoh v. The Minister for Immigration (1994) 49 FCR 409

Gas Industry Salaried Officer's Federation v. Municipal Officers' Association of Australia (1989) 88 ALR 113

ESTER JONES v. THE MINISTER OF STATE FOR IMMIGRATION

AND ETHNIC AFFAIRS

No. WAG 63 of 1995

CARR J

PERTH

18 SEPTEMBER 1995

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA ) No. WAG 63 of 1995

DISTRICT REGISTRY )

GENERAL DIVISION )

B E T W E E N: ESTER JONES

Applicant

and

THE MINISTER OF STATE

FOR IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

CORAM: CARR J.

PLACE: PERTH

DATE: 18 SEPTEMBER 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The applicant have leave to file and serve notice of appeal against the judgment delivered on 9 December 1994 in application No. WAG 37 of 1994 no later than 22 September 1995.

2. The applicant's motion filed on 5 September 1995 for leave to amend her application for an order of review in the abovementioned application be adjourned and reserved to the Full Court hearing any appeal against the abovementioned judgment.

3. Costs of the applicant's motions filed on 14 June 1995 and 5 September 1995 be reserved. If the abovementioned appeal proceeds then those costs are reserved to the Full Court hearing that appeal.

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

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA ) No. WAG 63 of 1995

DISTRICT REGISTRY )

GENERAL DIVISION )

B E T W E E N: ESTER JONES

Applicant

and

THE MINISTER OF STATE

FOR IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

CORAM: CARR J.

PLACE: PERTH

DATE: 18 SEPTEMBER 1995

REASONS FOR JUDGMENT

Introduction

This is an application by the applicant, Mrs Ester Jones, for an extension of time in which to file and serve a notice of appeal from a judgment of a Judge of this Court (Hill J.) delivered on 9 December 1994. After allowing for the Christmas/New Year break the notice of appeal should have been filed on or before 27 January 1995. The application was filed on 14 June 1995.

The applicant has also filed (on 5 September 1995) a notice of a motion for leave to amend her original or originating (I shall use the terms interchangeably) application for an order of review dated 25 March 1994 by the addition of three further grounds. In summary, those grounds are that procedures required by law to be observed by the Immigration Review Tribunal ("the Tribunal"), whose decision was the subject matter of that application, were not observed and that the Tribunal's decision involved errors of law. In essence, these grounds are concerned with the Tribunal's alleged failure to make or set out certain findings and to refer to the evidence or other material on which any findings of fact were based, contrary to s.368(1)(c) and (d) respectively of the Migration Act 1958 (Cth). The errors of law upon which it is now sought to rely were that in relation to the central issue before the Tribunal i.e. whether there was a genuine and continuing marital relationship between Mrs Jones and her husband, the Tribunal failed to make findings of material facts relating to that issue, failed to reach any conclusion on the issue and relied on what the applicant seeks to describe as the "notion of burden of proof" to refuse the application.

Statutory Framework

The relevant provision in respect of the application for an extension of time in which to file and serve a notice of appeal is Order 52 rule 15(2) which provides:

"Notwithstanding anything in the preceding sub-rule [the sub-rule specifying the time for filing and service of a notice of appeal], the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal."

When exercising this power, it is clear that a single judge is exercising the Court's appellate jurisdiction, not its original jurisdiction: Thomas Borthwick & Sons (Pacific Holdings) Ltd v. Trade Practices Commission (1988) 18 FCR 424 at p.431; James Currie v. The Queen (unreported, Full Court, Judgment No. 862 of 1992). Whether a single judge also has power to grant leave to amend an originating application is
another matter. Section 25 of the Federal Court of Australia Act relevantly provides as follows:

"SECTION 25 EXERCISE OF APPELLATE JURISDICTION

25(1) [Full Court] The appellate jurisdiction of the Court shall, subject to this section and to provisions of any other Act, be exercised by a Full Court.

(2) [Applications heard by single Judge or Full Court] Applications:

(a) for leave or special leave to appeal to the Court; or

(b) for an extension of time within which to institute an appeal to the Court; or

(d) to stay an order of a Full Court;

may be heard and determined by a single Judge or by a Full Court.

(2A) [Prescribed conditions] The Rules of Court may make provision enabling applications of the kind mentioned in subsection (2) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.

(2B) [Ancillary powers] A single Judge or a Full Court may:

(a) join or remove a party to an appeal to the Court; or

(b) make an order by consent disposing of an appeal to the Court (including an order for costs); or

(i) the use of written submissions; and

(ii) limiting the time for oral argument.

(2C) [Rules of Court] The Rules of Court may make provision enabling matters of the kind mentioned in subsection (2B) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing".

During the course of argument, Dr J.T. Schoombee, counsel for the applicant, cited the Full Court decision in Teoh v. Minister for Immigration (1994) 49 FCR 406 as authority for the proposition that an original application could be amended on appeal. The Full Court unanimously so held. However, that power was exercised by the Full Court and not by a single Judge. Unfortunately, perhaps because the matter was dealt with as the last motion on a fairly busy directions day, the question of my power, sitting as a single judge, to make such an order was not argued. Accordingly the parties were invited subsequently to make submissions in writing on the point with each having an opportunity to reply.

Each party filed written submissions. Both parties submitted that, sitting as a single judge, I do have power to grant leave to amend the applicant's original application in this matter.

First the parties rely on the combined effect of s.25(2B)(c) and Order 10 rules 1(1A) and 1(2)(a)(ix). Those rules, relevantly provide as follows:

"1(1A) In any proceeding which is to be heard by a Full Court, whether in the original or appellate jurisdiction, such directions as is thought proper with respect to the conduct of the proceeding may be given by the Court constituted by a single Judge.

1(2) Without prejudice to the generality of sub-rule (1) or (1A) the Court may -

(a) make orders with respect to -

. . .

(ix) amendments."

The applicant cited Gas Industry Salaried Officer's Federation v. Municipal Officers' Association of Australia (1989) 88 ALR 113 at p.120 as authority for the exercise of such a power. In my view that decision is clearly distinguishable. What the case decided was that a single Judge could grant leave to intervene in principal proceedings in which jurisdiction was to be exercised by a Full Court under s.53(2)(c) of the Industrial Relations Act 1988 (Cth).

In my view, the reference to amendments in sub-paragraph 1(2)(a)(ix), set out above, is to amendments of documents within the particular proceedings i.e. in this case within the appeal. Insofar as sub-section 25(2B)(c) refers to directions, I do not consider that would include directions giving leave to amend an originating application. The sub-section is expressed in terms of "directions about the conduct of an appeal to the Court". The types of directions specified (although in a non-exhaustive manner)
give an indication of the type of directions contemplated. In my view, the question whether, in the course of an appeal, leave should be given to amend an originating application is not within the power of a single Judge exercising appellate jurisdiction. It is a matter which, quite properly, should be dealt with by a Full Court. If I am wrong in my view and I have a discretion in the matter, I decline to exercise that discretion. My reasons for so declining are, first, that generally such a matter should be dealt with by a Full Court, particularly if contested. Secondly, in this particular case the proposed amendments would flow through to constitute virtually the whole of the basis for the appeal.

By way of alternative submissions, the parties referred to s.11(7) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") which empowers the Federal Court to amend "a document lodged with" the Court's registry in connection with an application under that Act. It was submitted that the ADJR Act refers to "the Court" as meaning the Federal Court of Australia without expressly limiting that reference to the Court exercising original or appellate jurisdiction. The applicant relies upon the fact that s.25(1) of the Federal Court of Australia Act, which confers the appellate jurisdiction of the Court, is stated to be "subject to this section and to the provisions of any other Act". In my opinion, the reference in s.11(7) of the ADJR Act to a Court permitting a document to be amended, is a reference to the Court when exercising original jurisdiction or appellate jurisdiction as the case may be. In this matter the original jurisdiction has been exercised and at that level the Court is functus officio save for slip orders or consequential orders to enable the judgment to be carried out or the like. Here the situation is one in which a single Judge is exercising a restricted and carefully-defined part of the Court's appellate jurisdiction. For the reasons given above, I do not consider that I have power to make the amendments sought in respect of the original application and if I have such power I decline, for the above reasons, to exercise that discretion.

Each party, in their respective submissions, referred to Order 13 rule 2 as applied in Teoh as an alternative source of power to make such an order. The applicant also seeks to invoke what are said to be the incidental powers of a single Judge hearing an application under s.25(2) of the Federal Court of Australia Act. For the same reasons as I have outlined above, I reject those submissions.

Factual Background

The following factual background is taken largely from the reasons for judgment of Hill J. and from documents filed on behalf of the applicant.

Mrs Jones is a citizen of the Philippines. She was born on 13 October 1949, visited Australia first in 1988 and arrived in Australia for the second time on 4 August 1991. On that occasion she was granted a visitor's visa with permission to remain for a period of six months.

At some time between 27 August 1991 and October of that year, Mrs Jones met, by arrangement, Mr Harry Jones. Mr Jones was then 76 or 77 years of age and in bad health. His wife had died about a year before and he lived on his farm near Pinjarra which is some 70 kilometres south of Perth. On the day they met, according to Mrs Jones, Mr Jones proposed marriage to her. She told him that she would like to think about it. One week later (the next time they met) she accepted the proposal. She was persuaded to do so by her sister, Mrs Rose Peters and her sister's husband (with whom she was then living) as a means of assisting her to stay in Australia.

On 29 October 1991 Mrs Jones married Mr Jones and, on the basis of being married to an Australian citizen, she applied, on 13 January 1992, to remain permanently in Australia. At some time after the marriage one of Mrs Jones' daughters was brought to Australia at Mr Jones' expense. The remaining daughter stayed in the Philippines to care for Mrs Jones' mother. Shortly after their marriage, Mr Jones sold his farm for $85,000 and purchased a home in North Pinjarra for $65,000. That house was sold in September 1992 for $65,000.

Mr & Mrs Jones and her daughter then lived with her sister and brother-in-law for a time. Mrs Jones' evidence is that neither she nor her husband now have any significant assets.

It would appear that, while so resident, Mrs Jones then, in about April 1993, met a Mr Raymond Mundy who has a home in Medina. The following month, Mr and Mrs Jones and Mrs Jones' daughter moved into Mr Mundy's home. The matter of whether there was any relationship between Mrs Jones and Mr Mundy was an issue before the Tribunal.

Mrs Jones' application to remain permanently in Australia was refused and she sought review by the Migration Internal Review Office of the respondent's decision to refuse that application. The decision was affirmed and in consequence Mrs Jones lodged an application for review by the Tribunal. There again, Mrs Jones was unsuccessful and the decision under review was affirmed by that tribunal. She then applied to this Court under the provisions of the ADJR Act for judicial review of the Tribunal's decision.

That application for review was made, basically, on three grounds. The first was that the decision was an improper exercise of power in that the Tribunal took into account irrelevant considerations. The second ground also alleged an improper exercise of power in that the Tribunal failed to take into account relevant considerations. The final ground was that the decision was an improper exercise of power in that it was so unreasonable that no reasonable decision-maker could have come to it.

Hill J. held that none of these three grounds had been made out and the applicant does not seek, in the proposed appeal, to challenge his Honour's conclusions in that regard.

Tendered in evidence before me was a copy of the transcript of the proceedings before Hill J. During the course of argument in those proceedings, Mrs Jones' then counsel complained that the Tribunal did not make a finding of fact in relation to anything. The trial judge asked Mrs Jones' counsel whether his client was relying on an allegation that the Tribunal had failed to make findings of relevant facts. His Honour drew counsel's attention to the fact that this did not appear to have been covered by the grounds of the application for the order of review. Counsel expressly disclaimed any
reliance upon failing to make findings of fact as being a ground of review in itself. It would seem possible that counsel was simply stating what he thought to be a proposition of law. If so, counsel may have overlooked the provisions of s.135 of the Migration Act (now s.378 of that Act). However, counsel's response may have reflected his assessment of the factual circumstances (i.e. what was expressly or impliedly contained in the Tribunal's reasons for decision), although the general tenor of his submissions suggests otherwise. I should perhaps at this stage note that the application for an order of review had been amended on several occasions prior to the hearing and was further amended at the hearing on 2 November 1994.

Counsel for the applicant before the trial judge was quite clearly put on notice by Hill J. on more than one occasion during the hearing that his Honour's understanding was that Mrs Jones was not complaining about the matters which she now seeks to raise in her grounds of appeal. Similarly, the thrust of the respondent's counsel's submissions before Hill J. was that the Tribunal, having made its findings as to credibility of witnesses, was entitled to ignore their evidence and not to proceed to make express findings on the matters raised by such evidence. The applicant's counsel did not seek to reply.

In Hill J's reasons for judgment there appear the following two paragraphs (at pp.12 and 22 respectively):

"While it is possible to be critical of the Tribunal's decision in the present case, particularly having regard to the lack of found facts, that is not a matter upon which the applicant relies. Rather, it is accepted that the Tribunal's comments in their reasons on matters such as onus of proof were correct and that the Tribunal could, if unable to accept the evidence of any witness,
properly conclude that the applicant should fail.

. . .

Before concluding this judgment, however, I should repeat that it may be possible to criticise the Tribunal's reasons for decision on the basis that the Tribunal failed to make proper findings of fact. It must be a rare case indeed where a Tribunal, conducting an administrative review, forms the view that none of the witnesses before it can be relied upon with a result that the Tribunal is unable to reach any conclusion at all on a matter essentially of fact. This was not, however, as I have already indicated, a submission explored in argument on behalf of the applicant and accordingly it would be inappropriate for me to comment further upon it."

It is quite possible that this is one of the rare cases to which his Honour was referring, because the Tribunal's reasons included the following passage:

"The Tribunal did not find the evidence of the various witnesses to be reliable. Mr Jones' evidence was vague and evasive and on various occasions, he has had to refer to his wife before he answered the questions put to him by the Tribunal. Mr Mundy suffers from a severe psychiatric condition as indicated by a medical report he had tendered at the outset of the hearing. Although he was a co-operative witness, he soon became anxious and confused. The Applicant's and her sister's evidence was in the main inconsistent particularly in relation to the circumstances surrounding the Applicant's and her husband's first meeting. The Tribunal did not find them to be credible witnesses."

The Tribunal had reviewed the evidence including the matter of whether Mrs Jones had a relationship with Mr Mundy and Mrs Jones' denial that she had ever had sexual relations with him. The Tribunal had then turned to the question of whether the relationship between Mr and Mrs Jones was "genuine and continuing" and referred to the test in that regard set out in the Full Court decision of Minister for Immigration, Local Government and Ethnic Affairs v. Dhillon (unreported, 8 May 1990). It then turned to the cases which deal with what flows from the consequence of a Tribunal being left in a state of uncertainty as to whether the facts necessary to activate the relevant statutory power have been established. The Tribunal referred to various decisions of this Court and the Administrative Appeals Tribunal and stated that in those circumstances a Tribunal must decide against the exercise of the power. The Tribunal's reasons concluded in the following terms:

"In this instance, having considered the evidence of the various witnesses as well as the evidence contained in the file, the Tribunal is unable to reach the finding that on the balance of probabilities, the relationship between the Applicant and Mr Jones is a "genuine and continuing" one as required under sub-regulation 126(1)(a)(i)(E). Given the inconsistencies in the evidence of the various witnesses the Tribunal is still in a state of uncertainty as to the standing of the relationship. Whilst the Applicant's motive for marrying Mr Jones primarily for the sake of gaining permanent residence is not on its own determinative of the issue, when considered in light of the other circumstances the evidence is clearly deficient in disclosing a mutual commitment to a shared life to the exclusion of others.

Given that the Applicant has failed to meet one of the relevant prescribed criteria, she is not entitled to a spouse EETEP" [being the relevant entry permit sought by Mrs Jones].

Are there special reasons why Mrs Jones should be given leave to file and service a notice of appeal out of time?

In Jess v. Scott (1986) 12 FCR 187 at p.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.

. . .

It should not be overlooked that r.15(2) enables leave to be given "at any time"; the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a
departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served."

As I have observed earlier, the application for an extension of time in which to appeal was lodged 4½ months after the expiration of the relevant time. I regard that as a very substantial delay. However, in the above passage, the Full Court recognised the possibility that a year's delay might not preclude a grant of leave given "something very persuasive indeed".

The factors to which Dr Schoombee pointed as being "special reasons" included the following:

(a) Lack of legal advice or assistance to the applicant in relation to the pursuing of a possible appeal at the time when the judgment of Hill J. was handed down;

(b) The lack of funds (personally and through the refusal of earlier legal aid and legal assistance applications) to pursue an appeal;

(d) The dispute with her former solicitors which has impeded and delayed any pursuit of the appeal.

I have grouped together the first four factors to which I was referred, as I consider that they are related matters.

In Mrs Jones' affidavit affirmed on 2 August 1995 ("Mrs Jones' Second Affidavit") she deposes as follows:

"4. After the decision of his Honour Judge Hill was handed down in
December, 1994 I received no legal advice in relation to that judgment until consulting my present solicitors towards the end of April, 1995.

5. My solicitors at the time of the handing down of the judgment did not explain it to me. I was simply made aware of the costs of a further appeal and advised that if I wanted to appeal, I would have to come up with more funds. Grounds of appeal and the details of the judgment were never discussed.

6. I only saw my then solicitor on one occasion shortly after the decision was handed down in December, 1994 and did not consult with them after that time.

7. The grounds of appeal which I refer to in paragraphs 13 and 14 of Annexure "A" were only explained to me, and I first became aware of them, after my present solicitors received Counsel's opinion on or about 8 June, 1995.

8. Immediately after his Honour Judge Hill's decision was handed down in December, 1994 a dispute arose between my then solicitors and myself in relation to payment of fees. I was given no advice by those solicitors in relation to the appeal.

9. To this day my then solicitors have not released their file relating to this matter."

I pause to observe that there seems to be some inconsistency between paragraph 5 above and paragraph 32 of Mrs Jones' affidavit sworn 13 June 1995 ("Mrs Jones' First Affidavit") which reads:

"32. Initially, after the decision was made in December, 1994 I thought that the matter was then final and I had no choice other than to return to the Philippines."

However, I have decided to read paragraph 32 not as a statement that Mrs Jones believed in December 1994 that there was no right to appeal but that she simply received no advice as to the prospects of an appeal. It seems clear from paragraph 5 above that Mrs Jones knew that she had a right of appeal.

In paragraph 31 of her first affidavit Mrs Jones says that it was not until she contacted the Cadena Cultural Association (and subsequently her present solicitors) that she was
able to make a further application for legal aid. I have some difficulty reconciling that statement with paragraph 30 of her first affidavit in which Mrs Jones recites the fact that she had previously applied for legal aid through the Legal Aid Commission (to which I shall refer by its professional practice name, Legal Aid Western Australia) in the middle of 1994 and had been refused legal assistance at that time. It may mean that Mrs Jones did not realise that although she had been refused legal aid on one occasion, she could still make a further application.

In Mrs Jones' Second Affidavit she stated that early in 1995 she applied to "Law Access" (a voluntary scheme run by the Law Society of Western Australia) for legal assistance but her application was refused in or around January 1995. At some time prior to 7 February 1995 Mrs Jones approached her local Federal Member of Parliament who interceded on her behalf by making representations in writing to the respondent. By letter dated 22 March 1995 Mrs Jones was advised that this intercession had been unsuccessful.

The affidavits do not explain why Mrs Jones did not make any application for legal aid to Legal Aid Western Australia until (as she states in paragraph 13 of her second affidavit) she was advised by members of the Cadena Cultural Association that she "had nothing to lose by seeking further legal assistance." It would seem that Mrs Jones first approach to that Association was on 17 April 1995, the same date upon which Mr Jones had seen the solicitor whom Mrs Jones subsequently contacted late in April 1995.

On 8 May 1995 a formal application for legal aid was made on Mrs Jones' behalf. Initially that application was refused. However, on 22 May 1995, after reconsideration of that decision, legal aid was granted to obtain counsel's opinion concerning the merits of proceeding with the matter. Counsel was instructed on 25 May 1995 and his opinion was received on 8 June 1995 following which a further approach was made to Legal Aid Western Australia for an extension of the grant of legal aid. Further legal aid was extended on 13 June 1995 to the lodgment of the application for leave to file and serve a notice of appeal. That application was filed on 14 June 1995.

There is no dispute that at the relevant time Mrs Jones lacked funds. I now turn to the matter of her social, personal and cultural circumstances. Although Mrs Jones has sufficient difficulty with the English language that her affidavits were translated into the Philippino language, she has demonstrated an ability to enlist the assistance of her local Member of Parliament in raising the matter with the Minister for Immigration. She organised her local medical practitioner to write to the Immigration Department on behalf of her husband and herself and I do not think that it has been satisfactorily explained why, as she was without means, she did not make an approach to Legal Aid Western Australia.

Given Mrs Jones' ability to approach the persons to whom I have just referred, I am not inclined to attach a great deal of weight to the matter of her social, personal and cultural circumstances as explaining Mrs Jones' failure to apply for legal aid. However, I attach some weight to those circumstances, more weight to her lack of means and I bear in mind the fact that she had previously been refused legal aid.

I must say that the impression which I have formed is that at about the time when the period for filing a notice of appeal expired (which coincided with the Law Society's rejection of her application for help), Mrs Jones made a decision not to pursue the matter any further through the courts but to follow the other avenues referred to above and also to generate some publicity for her cause. There is evidence before the Court, for example, of a newspaper article accompanied by a picture of Mr and Mrs Jones looking particularly sad.

Dr Schoombee referred to the dispute between Mrs Jones and her former solicitors as having impeded and delayed any pursuit of the appeal. If there were any evidence of unsuccessful attempts to secure Mrs Jones' file of papers for the purposes of obtaining legal advice from an alternative source or obtaining legal aid, then I would have been inclined to place some weight on this factor. There is no such evidence and accordingly I am not prepared to accept that this was a factor in the delay. However, the fact that her former solicitors did not give her any advice as to the prospects of an appeal is something which I have taken into consideration. Given the grounds relied upon in the application and the manner in which the case had been conducted, the advice might not have been encouraging. However, a fresh mind might have been applied and attention might have been focussed on Hill J's comments in the extracts from his Honour's reasons which I have set out above. I return to the list of factors advanced as justifying the exercise of the Court's discretion in Mrs Jones' favour.

(e) The continuing efforts by Mrs Jones and others on her behalf to obtain a reversal of the unfavourable decision.

I accept that this is a relevant factor to be taken into account as indicating that Mrs Jones had not accepted the decision: Hunter Valley Developments Pty Ltd v. Cohen (1984) 3 FCR 344 at pp.348-349 and the cases there cited. This is not a case where the decision-maker was allowed to believe that the matter was finally concluded.

(f) Lack of Prejudice

The applicant points to lack of prejudice on the respondent's part. Mr S. Bhojani, counsel for the respondent, submitted that there was prejudice to the respondent. Principally, Mr Bhojani pointed to the diversion of administrative resources and the interference with the orderly administration of the respondent's department as constituting prejudice to the respondent and consequently to the public. I was referred to the decisions of Waterhouse v. Deputy Commissioner of Taxation (unreported Fox J. 16 September 1986) and Mahfoud v. The Minister for Immigration (unreported, Beazley J. Judgment No. 443/1993, 5 July 1993). While I am prepared to accept that there may be some minor interference with the orderly administration of the respondent's department if leave is granted and that this may constitute a degree of prejudice, I am not prepared to regard this as being significant prejudice.

(g) The Interests of Mrs Jones' Daughter

Next the applicant points to the fact that if Mrs Jones is deported then her daughter Milarose will "suffer the same fate". Mrs Jones' daughter joined with her in the application for permanent resident status and can be regarded for present purposes as the potential appellant. I do not regard this matter on its own as constituting a special reason for the granting of leave to file the notice of appeal out of time. However, this factor forms part of the total circumstances of the matter and, in my view, cannot be ruled out as being irrelevant. As Dr Schoombee points out, there is a public interest in the fate of any 8 year old girl.

(h) The Strength of the Applicant's Case

The applicant relies on the strength of her case. In Seiler v. Minister for Immigration (1994) 48 FCR 83 at p.98 French J. declined to take into account the merits of the application in that matter when deciding to allow time to be extended for the filing of an application for an order of review. His Honour observed:

"It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor against it."

In the Hunter Valley case at pp.348-349 Wilcox J. listed some guidelines as being relevant to the exercise of the discretion to extend time for filing an application to review.

One of the matters listed by his Honour was the merits of the substantial application. As the Full Court observed in Jess v. Scott (at p.194) the Court's discretion in respect of an application under Order 52 rule 15(2) should not be trammelled by set rules but should be exercised wherever sufficient cause is shown upon an examination of the circumstances of the particular case. One of those circumstances is the merits of the proposed appeal.

I have examined the Tribunal's reasons for decision, its findings on credibility and its conclusions, some of which I have set out above. Apart from the documents comprising the Immigration Department file and other documents received in support of the application to the Tribunal there was some oral evidence. That evidence was given by Mr and Mrs Jones, Mrs Peters, Mr Mundy and his mother Mrs Agnes Mundy. I have set out above the Tribunal's assessment of that evidence.

All that I would be prepared to say at this stage in respect of the alleged merits of the proposed appeal is that the appeal is in the "reasonably arguable" category. As such, this factor tends slightly in favour of an extension of time.

(i) Other Matters

Finally, the applicant relies on what are said to be extraordinary circumstances in that the essential basis for the appeal was put to Mrs Jones' counsel in argument by Hill J. and counsel declined to act on the suggestion. I consider that this is a relevant factor but that on its own it does not constitute a special reason for extension of time. In one sense, I am inclined to think that it might weigh against the applicant. She was given every opportunity to pursue the matter but her counsel made a conscious decision not to do so.

Jess v. Scott itself was a case in which a solicitor had made a miscalculation. He had miscalculated the time within which an appeal had to be filed. There were other like cases referred to in the Full Court's reasons for judgment in that matter. There is really no need either to follow or distinguish cases in which either a solicitor or counsel has caused an applicant to be out of time [see the Full Court's comments in
Jess v. Scott at p.196]. If there was such a mistake in this matter it was of an entirely different nature. There was a conscious decision made during the course of the trial not to argue the matters which the applicant now seeks to raise. These matters are raised not only to found the appeal but also to form the basis for an extension of time. Teoh v. The Minister (1994) 49 FCR 409, upon which the applicant relies, is to be distinguished. In that case the appeal had been lodged within time and the appellant was granted leave to argue grounds which had either not been raised or had been abandoned at the hearing.

In view of my conclusion that, sitting as a single Judge, I do not have power to exercise the Full Court's discretion to grant leave to amend the originating application for an order of review, I do not consider it appropriate that I should assess the merits or otherwise of such an application. I will simply regard the application for such leave as being reasonably arguable although Mr Bhojani put forward vigorous submissions in opposition to it.

Mr Bhojani also complained, on the respondent's behalf, that there was insufficient detail in the explanations proffered by Mrs Jones in support of her application. He argued that there was no proper explanation for Mrs Jones' inability to file a notice of appeal or her delay in filing an application for extension of time. It was put that Mrs Jones had not condescended into particulars in her explanation of the passage of time since the judgment was delivered. For example, no explanation, so it was said, had been proffered concerning:

. the advice sought by Mrs Jones from her former solicitors about the prospects of success of an appeal;

. why those solicitors were not able to apply again for legal aid;

. what Mrs Jones did to resolve the dispute between herself and those solicitors;

. when and why Mrs Jones' former solicitors ceased acting for her;

. what assistance Mrs Jones sought from the Cadena Cultural Association;

. what was the nature of the advice which Mrs Jones received in relation to Hill J's judgment when she consulted her present solicitors towards the end of April 1995; and

. when Mrs Jones present solicitors were first consulted, and what they did prior to the application for an extension of time.

I accept that there is not a great deal of particularity in the explanations tendered on behalf of Mrs Jones. However, I do not accept that no explanation has been proffered in respect of the above matters. I think a sufficiently clear picture emerges of what took place between the time when judgment was given and 14 June 1994 when this application was lodged.

The question is whether there is sufficient in the circumstances of the present matter to take this case out of the ordinary?

As part of making that assessment, I found myself drawn to a passage from a case cited in Jess v. Scott. The case was Re Coles and Ravenshear [1907] 1 KB 1 at p.4 where Sir Richard Collins M.R. said this:

"Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not be to so far bound and tied by rules,
which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case."

Had there been any significant prejudice to the respondent in this matter, I would not have hesitated to dismiss this application. It is not difficult to understand the departmental frustration and its perception of the lack of underlying merits of the entry permit application, given the strong findings on credit made by the Tribunal. However, the respondent also has an interest in ensuring that the provisions, including review provisions, of the legislation which it administers are properly observed. I have weighed the matters put forward as showing prejudice on the respondent's part separately and in that context as well. The analogy sought to be drawn between the present case and Waterhouse, for example, is not, in my opinion, a strong one.

As may be indicated by the above reasons, I do not regard the matter as being clear-cut. I regard it as being very close to the line.

Nevertheless, I consider that, taking all the matters referred to above into account, there is sufficient to take this case out of the ordinary to justify granting leave for the late filing and service of a notice of appeal. The circumstances which, cumulatively, drew me to the conclusion that this matter was out of the ordinary included Mrs Jones' poverty, her language difficulties, the manner in which her case was handled by her previous legal advisers, the lack of advice concerning the prospects of an appeal, her pursuit of alternative sources of relief, the reasonably arguable case, the absence of any real prejudice to the respondent and the situation of her young daughter.

There will be an order granting leave to the applicant to file and serve a notice of appeal no later than 22 September 1995. The applicant's motion filed on 5 September 1995 for leave to amend her application for an order of review in application No. WAG 37 of 1994 will be adjourned and reserved to the Full Court hearing that appeal.

I certify that this and the preceding twenty-five (25) pages are a true copy of the Reasons for Judgment of Justice Carr.

Associate:

Date: 18 September 1995

Counsel for the Applicant: Dr J.T. Schoombee

Solicitors for the Applicant: Rattigan Kearney & Bochat

Counsel for the Respondent: Mr S. Bhojani

Solicitors for the Respondent: Australia Government

Solicitor

Date of Hearing: 8 September, 1995

Date of Judgment: 18 September, 1995

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