CATCHWORDS

ADMINISTRATIVE LAW - Immigration - Application under s11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to extend time for filing application for review of decision of respondent refusing to grant permanent resident status - matters relevant to whether the Court should exercise its discretion to grant an extension discussed - whether failure to explain delay is determinative - whether application so lacking in merit that futile to extend time.

Administrative Decisions (Judicial Review) Act 1977 (Cth): s11(1)(c).

Migration Act 1958 (Cth): s6A(1)(e) (as then in force).

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

Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (Hill J, unreported, 12 December 1989).

KIM HYUN TAI v THE HONOURABLE NICK BOLKUS MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No NG 680 of 1995

Hill J

Sydney

24 April 1996

IN THE FEDERAL COURT OF AUSTRALIA  )

                                   )

NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 680 of 1995

                                   )

GENERAL DIVISION                   )

              BETWEEN:      KIM HYUN TAI

                             Applicant

                  AND:      THE HONOURABLE NICK BOLKUS MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

                             Respondent

CORAM:    HILL J

PLACE:    SYDNEY

DATED:    24 APRIL 1996

                      MINUTES OF ORDER

THE COURT ORDERS THAT:

     (1)  Motion dismissed.

     (2)  Applicant to pay respondent's costs of the motion.

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

IN THE FEDERAL COURT OF AUSTRALIA  )

                                   )

NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 680 of 1995

                                   )

GENERAL DIVISION                   )

              BETWEEN:      KIM HYUN TAI

                             Applicant

                  AND:      THE HONOURABLE NICK BOLKUS MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

                             Respondent

CORAM:    HILL J

PLACE:    SYDNEY

DATED:    24 APRIL 1996

                    REASONS FOR JUDGMENT

          On 10 July 1985 Mr Kim, the applicant, arrived in Australia and was given a transit visa valid until the next day.  He is a citizen of Korea, born on 1 December 1941, and married with two children in Korea.  Neither his wife nor his children accompanied him.

          Mr Kim then disappeared from sight until 13 December 1989 when he applied for a grant to him of permanent resident status.  His application was perhaps prompted by publicity at the time that the Immigration Law was about to be amended.  The application was rejected.

          Mr Kim then applied for reconsideration of that decision by the Immigration Review Panel.  The ground of the application were those stated in s6A(1)(e) of the Migration Act 1958 (Cth) ("the Act"), as then in force, namely, that
there were strong compassionate or humanitarian grounds for the grant of an entry permit to him.

          In support of his application, Mr Kim wrote:

          "I think that the Department's decision should be reconsidered as it does not take account of either the close work and other ties I have established in Australia or the hardship which would be caused by my being required to depart Australia.

          As will be seen from the enclosed documents, I have obtained excellent employment in Sydney, and have carried out that employment successfully, to the extent that my employer company would sponsor me for permanent residence.  I have also worked well with my fellow employees, as evidenced by the enclosed document.

          I have close personal ties with the Korean and Australian communities in Sydney and diminished ties with Korea.  If I am granted permanent residence, my wife and family will NOT come to Australia, as their ties are with Korea.  I have worked and paid Australian tax for my period here, and have remitted most balance funds to support my family in Korea, including my daughter who is studying for entrance examination for Seoul National University.  I have assets only of AUD$10000 cash for this reason.  It would not be either reasonable or just to require me to leave Australia at this time.  At my age (49) it would be difficult if not impossible to obtain employment in Korea, where employment preference is accorded to younger men.

          This would mean that I could not work and thus could not support my family in any way.

          In Australia, my employer has indicated that I would be very difficult to replace. In Korea, I would have no employment, and
no remaining years of productive work.  My situation, and that of my family, would thus be most difficult.

          My personal and work ties are now genuinely with Australia and I wish strongly to spend my remaining years in this country."

          Mr Kim's application for review was likewise unsuccessful.  The panel considered Mr Kim's appeal on 14 December 1990 and Mr Kim was notified of the result on 7 January 1991.

          The Immigration Review Panel did not accept everything that Mr Kim had put to them.  The relevant paragraphs of the Panel's report, containing findings of fact, is in the following terms:

          "In assessing these claims, I accept that Mr Kim may have developed some ties, emotional and other, with Australia during his some 5 years here, and that his ties with Korea may have diminished to some extent.  However, his family disposition is such that all his immediate family, including his spouse, mother, two children and 4 siblings all reside in Korea.  There is no evidence on file that Mr Kim has emotional ties with Australia which are so significant that they would outweigh those he has with Korea, or the severance of which would cause him emotional hardship so severe as to amount to a strong compassionate circumstance within the meaning of S6A(1)(e).

          I do not accept the claim that Mr Kim, because of his age, would find it impossible to obtain employment in Korea. He is now 49 years of age, and was 44 when he left Korea.  Although it may be true
that employment preference is given to younger persons in Korea, the same could validly be said of Australia.  The fact that Mr Kim is working in Australia indicates that he is able-bodied, and his employment record in Korea suggests he has skills which are recognized in that country.  I accordingly give little weight to Mr Kim's claims regarding his lack of employment prospects in Korea and the difficulty he claims he would have supporting his family if he returned there.

          I accept that Mr Kim's employer in Australia may experience some inconvenience if Mr Kim is denied permanent residence.  However, there is no evidence on file which would allow one to conclude that the employer would find it impossible to replace him.  I do not find this to be a strong compassionate circumstance within the meaning of S6A(1)(e).

          The circumstances of this case, whether considered individually or cumulatively, do not amount to strong compassionate circumstances within the meaning of S6A(1)(e) of the Act."

          No attempt was made to challenge the decision of the Review Panel, whether by way of judicial review or otherwise, for some time.  I was told from the bar table that Mr Kim then turned his attention to amendments made under the Act and applied for permission to remain in Australia on reasons associated with his employment.  He was, so it seems, likewise unsuccessful.

          The present application commenced in the Court on 1 September 1995.  Because more than twenty-eight days had elapsed from Mr Kim being notified of the Review Panel's decision, it became necessary for him to apply for an extension of time within which to make the application: s11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act").  The application, in respect of which the extension of time is sought, seeks judicial review pursuant to the provisions of the ADJR Act of the decision refusing Mr Kim permission to remain permanently in Australia.  The ground for such review is said to be that the Panel, the recommendations of which were accepted by the Minister, the respondent to the present proceedings, had erred in law in applying an incorrect interpretation of s6A(1)(e) of the Act, and particularly because there had been a failure by the Panel to take into account a decision given by me in the case of Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (delivered in Sydney on 12 December 1989).  Dahlan's case is unreported.

          No attempt has been made to adduce affidavit evidence explaining the time which elapsed between the communication to Mr Kim of the decision on his unsuccessful application and the bringing of the application in September 1995, a period of approximately five years.  It is put that the delay may be inferred to have arisen because the decision in Dahlan's case was unknown to Mr Kim and was not communicated to him presumably, at least, until he made contact with his present solicitors and received advice from them.

          The application for an extension of time being contested, it is necessary to consider it first.  Section 11(1)(c) empowers the Court to extend the time for lodging of an application for an order of review beyond the twenty-eight day "prescribed period", referred to in s11(3).  It has become customary in applications for extension of time for reference to be made to the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 in which his Honour (at 348-350) distilled the principles which his Honour gleaned from the relevant authorities at the time, "to guide, not in any exhaustive manner, the exercise of the court's discretion".  The danger that the distillation of matters relevant to discretion might harden into a statement of binding principles was not lost on his Honour.  Sometimes, however, his Honour's warning appears to have escaped the attention of those seeking to rely upon what his Honour said.

          It is convenient to repeat the distillation attempted by his Honour.

          "1.  Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made.  Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do.  The `prescribed period' of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v. Aboriginal Development Commission (1982) 43 A.L.R. 535 at 550).  Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v. Nolan
(1982) 45 A.L.R. 411 at 416).  It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an `acceptable explanation of the delay' and that it is `fair and equitable in the circumstances' to extend time (Duff at 485; Chapman v. Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).

          2.   Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished.  A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not `rested on his rights': per Fisher J. in Doyle v. Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded.  Compare Doyle, Chapman, Ralkon and Douglas v. Allen (1984) 1 F.C.R. 287 with Lucic at 414-415 and Hickey v. Australian Telecommunications Commission (1983) 48 A.L.R. 517 at 519.  The reasons for this distinction are not only the `need for finality in disputes' (see Lucic at 410) but also the `fading from memory' problem referred to in Wedesweiller v. Cole (1983) 47 A.L.R. 528.

          3.   Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.

          4.   However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523.  In this context, public considerations often intrude (Lucic, Hickey).  A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.

          5.   The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.

          6.   Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-535.

          In considering the authorities it is, I believe, important to bear in mind the point made by Sheppard J. in Wedesweiller at 531, relating to the diversity of decisions to which review may be sought under the Act:

              `... there will be some cases which may be decided upon considerations which affect only the immediate parties.  It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the Government or a particular department if the application is granted and, generally, what the justice of the case requires.  In other cases wider considerations will be involved.'

          He went on to mention the reference to public interest made by Fizgerald J. in Lucic at 416.

          It is in relation to the former category of cases, that is, those `which affect only the immediate parties' that the approach adopted by Bray C.J. in Lovatt v. Le Gall (1975) 10 S.A.S.R. 479 at 485 in respect of private litigation but adopted in this context in both Doyle at 287 and Duff at 485, is apposite namely:

               `If the defendant has suffered no prejudice, as when he was well within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant extension.'

          By contrast, in cases involving public administration, especially day to day matters such as personnel management, the public interest may well dictate refusal of an extension even after only a short delay."

          The comment of his Honour in respect of the first guideline, that it is a pre-condition to the exercise of discretion that the applicant show an acceptable explanation of the delay might, if seen as a statement of law, require some modification having regard to the decision of the Full Court in Comcare v A'Hearn (1993) 119 ALR 85 at 88.  Certainly it may be expected that an explanation will be given and the strength or otherwise of that explanation will be a relevant matter to be considered.  So, too, would failure to give any explanation at all.  But I would not wish to foreclose the possibility that the justice of allowing an extension of time was so great that failure to give an explanation operated to disentitle an applicant for review.

          In the present case no explanation at all has been given.  The failure to give an explanation is a matter to be taken into account.  It does not, however, in my view, lead to
the conclusion that the application should automatically be disallowed.

          Of the other matters referred to by his Honour in Hunter Valley Developments, it suffices to say that subsequent steps taken by Mr Kim do not operate so as to cause the scales to be tipped in his favour.  Nothing that he has done since could have indicated to the Minister or his Department that the dispute was intended to be kept alive.  On the other hand it can not be said that there has been any prejudice as such and parenthetically there has been no prejudice to Mr Kim himself.

          It is the fifth matter that weighs heavily in my view against extending the time to lodge the application for review.  I have formed the strong view that the substantial application is totally lacking in merit so that the grant of an extension of time would be futile.

          The matter which Mr Kim wishes to agitate, in the event that an extension of time is granted, is the alleged failure to take into consideration the decision in Dahlan.  It is necessary, therefore, to turn to that case in an endeavour to grasp the relevance of it to the facts in the present case.

          Mr Dahlan had been an Indonesian journalist.  He claimed that there were strong compassionate or humanitarian
grounds for the grant of an entry permit to him, pursuant to s6A(1)(e) of the Act.  He also claimed to be entitled to the status of a refugee.  Mr Dahlan came from one of the most fervently Islamic areas in Indonesia.  He was one of those persons who held fundamental Islamic beliefs and directly opposed the ideology of the Indonesian government.  As a journalist he had written openly about his beliefs and in consequence had, on two occasions, been arrested and interrogated, although ultimately released.  He had been warned to leave Indonesia and did so in fear of being charged with subversion.  While in Australia he had continued writing fundamentalist material.  There was evidence that it was not uncommon for those detained on charges of subversion to be tortured and beaten and that there was a danger of political detention, disappearances, brutal interrogation and the like for political prisoners of conscience in Indonesia.

          On the particular facts of the case, I found that the decision that there were not strong compassionate and humanitarian grounds was a decision so unreasonable that no reasonable decision-maker could have made it.  For that and other reasons I set aside the decision.  In the course of the judgment I discussed s6A(1)(e) and the strong compassionate and humanitarian which that sub-section referred to:

          "The courts have not sought to create an all embracing test of what constitutes strong compassionate or humanitarian grounds; nor would such an exercise be
either possible or desirable.  The words are very broad.  Compassion is an emotion akin to pity; it is felt when the circumstances of others excite our sympathy so that we suffer with them.  Hence compassionate grounds will exist when the circumstances of an applicant are such as to enliven in the reasonable man his compassion.  By humanitarian grounds are meant no doubt grounds the denial of which would be inhumane having regard to the ordinary views of mankind.  The adjective `strong', involves as French J pointed out in Damouni v. Minister of State for Immigration, Local Government and Ethnic Affairs `a judgment that the relevant hardship be substantial'.  I agree with his Honour in that case that there is little point to be gained by examining the subtleties of the differences between `compassionate' and `humanitarian' for both words in the collocation invite, as his Honour said `a normative judgment'.

          ...

          Once the meaning of the collocation of words `strong compassionate and humanitarian grounds' is understood, the question whether a particular set of facts comes within it will be a question of fact for the decision-maker.  Cf Chan v. Minister of State for Immigration, Local Government and Ethnic Affairs, 8 December 1988, Ryan J (unreported)."

          In the judgment I also pointed out the necessity to divorce from the question whether there had been strong compassionate or humanitarian grounds, the issue whether an applicant had jumped the queue in the sense that the applicant was seeking to obtain more favoured treatment than available to those who made an application for entry in the ordinary course.

          The question whether there are strong compassionate and humanitarian grounds obviously is one dependent upon fact.  Provided the facts are such that they could fall within the ground, then it would be a matter for the Review Panel to determine whether the ground applied.  If, conversely, the facts are such that the Review Panel could not reasonably find that Mr Kim had made out a case for strong compassionate or humanitarian grounds, then the review must obviously fail.

          When, however, one looks at the facts as found, there is nothing in those facts which could reasonably support a case of strong humanitarian and compassionate grounds for the grant to Mr Kim of entry permit.  All that he has made out is that he may have developed some ties with Australia during his residence here, and that he could have some difficulty in obtaining employment were he to return to Korea, in that preference in employment could be granted to persons younger than he is.  The finding that there is some inconvenience to Mr Kim's employer can, for present purposes, be wholly disregarded.  On no view of the matter could the factors that Mr Kim has made out, alone or together, constitute in a relevant sense strong compassionate and humanitarian grounds for the grant to him of a permit.

          It is of course not strange that the panel did not refer to Dahlan's case for judgment had not yet been given.  But there is nothing in the Panel's reasons which in any way
suggests that it applied a wrong test in dealing with Mr Kim's application.  In my view no error of law has been demonstrated as alleged.

          In the course of argument reference was made to a policy control instruction, dated 23 May 1991, amending the guideline that had previously circulated concerning the strong compassionate or humanitarian ground for the grant of entry permits.  The document deals with Dahlan's case and makes amendments to the earlier version.

          It could hardly be an error in law in failing to apply that policy document, since it had not been issued until much later than the decision.  Indeed its relevance is difficult to comprehend.  There can be no criticism on the part of the Panel for failing to take into account any relevant policy.  The only criticism that can be made, and as I have already said it is made misguidedly, is that the Panel may have erred in applying the law as ultimately enunciated by me in Dahlan.  But the Panel, in my view, made no error of law at all.

          The final matter mentioned by Wilcox J in Hunter Valley Developments has no particular application in the present case.  There can be no question of fairness as between Mr Kim and others which can be a factor relevant to the exercise of discretion.

          I would, in the circumstances, refuse to extend the time within which an application might be filed in accordance with s11(1)(c) of the ADJR Act, with the result that I would dismiss the notice of motion accordingly and direct the applicant to pay the respondent's costs.

I certify that this and the

preceding fourteen (14) pages

are a true copy of the Reasons

for Judgment herein of his Honour

Justice Hill.

Associate:

Date:  24 April 1996

Solicitors for Applicant:    C Levingston of Corby Levingston

Counsel and Solicitors       E Wilkins instructed by the

for Respondent:              Australian Government Solicitor

Dates of Hearing:            16 April 1996

Date Judgment Delivered:          24 April 1996