FEDERAL COURT OF AUSTRALIA

Brehoi v Minister for Immigration & Multicultural Affairs

[1999] FCA 772

PRACTICE AND PROCEDURE - application under O 52 subr 15(2) Federal Court Rulesfor extension of time to file and serve a notice of appeal - whether applicant’s allegation that notice of appeal “lost in the post” constitutes special reasons for extension of time.

Administrative Appeals Tribunal Act 1975 (Cth) ss 42A(2), 42A(7), 42A(8), 42A(9), 42A(10)

Federal Court Rules O 52 rr 15(1)(a)(i), 15(2)

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

Jess v Scott (1986) 12 FCR 187, applied

Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400, cited

 NICHOLAS BREHOI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1355 OF 1999

WHITLAM, MOORE, KATZ JJ

SYDNEY

16 JUNE 1999

                                    On appeal from a Judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1.                  The application for an extension of time to file and serve a notice of appeal be dismissed.

2.                  The applicant pay the respondent’s costs of the proceeding.

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

                                    On appeal from a Judge of the Federal Court of Australia

REASONS FOR JUDGMENT OF THE COURT

1                     There is before the Court an application by Mr Nicholas Brehoi under O 52, subr 15(2), of the Federal Court Rules (“the Rules”) for leave to file and serve a notice of appeal outside the time permitted by O 52, subpar 15(1)(a)(i), of the Rules.  The extension of time is sought in respect of a judgment given on 20 October 1998.  Although the time for filing and serving a notice of appeal from the primary Judge’s judgment had expired on 10 November 1998, the application for the extension of time was not made until 14 December 1998.

2                     It is convenient to set out immediately certain of the circumstances out of which the application for an extension of time arises.  On 20 August 1997, a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) made a deportation order against Mr Brehoi, a non-citizen.  That order was expressed to have been made on the grounds (relevantly) of Mr Brehoi’s having been convicted by the New South Wales District Court of supplying heroin between 4 August and 4 October 1991 and of his having been sentenced by that Court in consequence to a fixed term of imprisonment of two and a half years.

3                     By an application dated 9 September 1997, Mr Brehoi sought review by the Administrative Appeals Tribunal (“the Tribunal”) of the making of that deportation order against him.

4                     On 2 March 1998, Mr Brehoi’s application to the Tribunal for review of the making of the deportation order against him was dismissed by the Tribunal pursuant to subs 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).  Relevantly, that subsection provides that if an applicant fails to appear at the hearing of the application, the Tribunal may dismiss the application without proceeding to review the decision the subject of the application.

5                     There is no doubt that the condition precedent contained in subs 42A(2) to the exercise by the Tribunal of the discretion conferred upon it by that subsection had been satisfied, Mr Brehoi having failed to appear at the hearing of the application.

6                     Further, the Tribunal was aware at the time of its dismissal of the application under the subsection, not only that Mr Brehoi had participated in person, on 3 February 1998, in a telephone directions hearing conducted by the Tribunal (when the time and place for the hearing of his application was fixed), but also that, since the date of that telephone directions hearing, Mr Brehoi had escaped from immigration detention and had not been recaptured.  Awareness by the Tribunal of the first of those two matters would no doubt mean that it had achieved, before exercising its powers under subs 42A(2), the satisfaction required under subs 42A(7) of the AAT Act to be achieved by it before exercising those powers, namely, satisfaction that appropriate notice had been given to Mr Brehoi of the time and place of the hearing.

7                     On 26 June 1998 (he having been recaptured on either 10 or 11 April 1998 (we are not aware which)), Mr Brehoi applied to this Court, pursuant to par 44(2A)(a) of the AAT Act, for an extension of time within which to institute an appeal from the Tribunal’s decision of 2 March 1998.  An extension of time was required because Mr Brehoi had failed to institute an appeal to this Court from the Tribunal’s decision not later than the twenty-eighth day after the day on which a document setting out the terms of the Tribunal’s decision had been furnished to him (see par 41 below).

8                     On 20 October 1998, the primary Judge dismissed the extension of time application to which we have referred in the preceding paragraph.  It is in respect of the judgment dismissing that extension of time application that yet a further extension of time application is brought.

9                     The considerations relevant to the exercise of the discretion conferred upon this Court to extend the time within which a person can institute an appeal to it from a decision of the Tribunal are not specified in par 44(2A)(a).  The primary Judge, however, approached the question of the exercise of her discretion by reference to the principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-50 (Wilcox J).

10                  One of those principles is that the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.  The primary Judge was of the view that there would be “little merit” in any attack in this Court on the Tribunal’s decision to dismiss, pursuant to subs 42A(2), Mr Brehoi’s application to it.  On that basis, she dismissed the application for an extension of time within which to appeal to this Court from the Tribunal’s decision.

11                  It must be emphasised that, on Mr Brehoi’s application to this Court for an extension of time within which to file and serve a notice of appeal from the primary Judge’s judgment, this Court is performing a different function than was the primary Judge.  This Court is not performing a function under par 44(2A)(a) of the AAT Act, but rather is performing a function under O 52, subr 15(2), of the Rules.  Unlike the former provision, the latter provision expressly requires the existence of “special reasons” before this Court’s discretion to extend time is enlivened.

12                  In Jess v Scott (1986) 12 FCR 187 at 195, a Full Court of this Court (Lockhart, Sheppard and Burchett JJ) said that the expression “special reasons” in O 52, subr 15(2), of the Rules was “intended to distinguish the case from the usual course”.  It added that a case,

“… 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.”

Later, the Full Court said of the expression that it was “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” (emphasis added).

13                  In accordance with Jess v Scott, it was incumbent upon Mr Brehoi to persuade this Court that there existed in his case grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which a notice of appeal must be filed and served.  If he did so, then the discretion referred to by the Full Court in Jess v Scott would arise.

14                  On the hearing of Mr Brehoi’s extension of time application in respect of the primary Judge’s judgment, this Court heard full oral submissions from Mr Brehoi.  As we understood those submissions, Mr Brehoi relied in them upon three particular matters as amounting to grounds sufficient to justify a departure from the ordinary time limit for appeals to a Full Court of this Court from a judgment of this Court constituted by a single Judge: first, that he was the father of a child, which child was an Australian citizen; secondly, that it would be contrary to the public interest if the Australian government were to expend the large sums of money required to deport him; and, thirdly, that he was a stateless person, so that any attempt to deport him to his country of former nationality, Romania, would be futile.

15                  Accepting for present purposes the factual accuracy of all three of those matters, we are unable to regard them, either singly or in combination, as justifying a departure from the ordinary rule prescribing the period within which a notice of appeal to a Full Court of this Court from a judgment of a single Judge of this Court must be filed and served.  They do not, in our view, distinguish this case from the usual course in any meaningful way.

16                  In support of his application for an extension of time within which to appeal from the primary Judge’s judgment, Mr Brehoi had filed a body of written material.  None of that written material appears to us to have taken the matter any further than did Mr Brehoi’s oral submissions, except, perhaps, for the assertions by Mr Brehoi in that written material that he had sought to file a notice of appeal from the primary Judge’s judgment by posting that notice of appeal to the Court on 5 November 1998 by registered post, but that, “Somehow this was lost in the post”.

17                  (We should say that we do not understand the Rules to permit the filing of notices of appeal by post, but we will ignore for present purposes the apparent inability to file a notice of appeal in that way, because we also understand that, regardless of the legal position, the New South Wales Registry does accept for filing notices of appeal sent to it by post, provided the sender is a person in custody, as Mr Brehoi was at the relevant time.)

18                  One is required for a number of reasons to be extremely sceptical about Mr Brehoi’s assertions to which we have referred in par 16 above.  Mr Brehoi’s lengthy history of criminal activity, which began shortly after his arrival in Australia, as well as including offences of drugs and violence, also specifically includes offences of dishonesty.  Further, the Judge of the District Court who sentenced him for the offence which was relied upon in his deportation order said that she had “formed the very strong view that it would be difficult to take anything the prisoner said too literally”. Finally, on his application to this Court for an extension of time within which to institute an appeal from the Tribunal’s decision, the primary Judge said,

“The applicant gave three different explanations for his failure to attend the Tribunal hearing.  There is, in my view, no credible reason for these discrepancies.  I do not accept the submission of the applicant that two friends on separate occasions misunderstood his instructions when writing letters and preparing documents on his behalf.”

19                  (We add that, in the present proceeding, Mr Brehoi gave yet a fourth different explanation for his failure to attend the Tribunal hearing, one not proffered before.  It was that he had not expected the hearing of his application to the Tribunal to occur until he had been served with a warrant by the Tribunal requiring him to attend at that hearing and that he had been served with no such warrant before 2 March 1998.) 

20                  It may also be noted, when considering Mr Brehoi’s assertion of having posted a notice of appeal to the Court on 5 November 1998, that no assertion was made by him either orally or in writing that he had sought to “serve” a copy of that notice of appeal on the Minister by posting it to him, whether by registered post or otherwise, at about the same time as he allegedly posted the notice of appeal to the Court, nor is there any evidence to suggest that he did so.

21                  However, assuming, in spite of all of the above, that such an unfortunate event as the loss in the post of a notice of appeal sent by Mr Brehoi to the Court by registered post did occur, we would no more regard that, in the particular circumstances of this case, as justifying a departure from the ordinary rule prescribing a period within which a notice of appeal must be filed and served than we would the three matters particularly relied upon by Mr Brehoi in his oral submissions.  That is because there is no evidence before the Court as to when Mr Brehoi first became aware of such assumed loss in the post.  For all one knows on the evidence before this Court, his awareness of such assumed loss may even have arisen before the expiration of the time limit for appealing from the judgment of the primary Judge, in which case he could have posted another notice of appeal to the Court to arrive in time.

22                  Before concluding these reasons for judgment, there is one further matter which emerged from the materials before the Court and which was raised by the Court itself during the course of argument. It is a procedural matter of some importance that we consider we should advert to in these reasons.

23                  Section 42A of the AAT Act, under subs (2) of which the Tribunal acted when dismissing Mr Brehoi’s application to it, contains provisions in subss (8) to (10) thereof which enable the reinstatement by the Tribunal of an application it has dismissed under that section.  Those provisions are (relevantly) as follows:

“(8) If the Tribunal, under subsection (2), has dismissed an application …, the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.

(9) If it considers it appropriate to do so, the Tribunal may reinstate the application….

(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application….”

24                  It will be noticed that, although subs 42A(8) deals only with dismissals under subs 42A(2), subs 42A(10) is not so limited.  It therefore applies to dismissals, not only under subs 42A(2), but also under subss 42A(1), (4) and (5).

25                  The three provisions which we have set out in par 23 above were inserted into the AAT Act in 1993 by the Administrative Appeals Tribunal Amendment Act 1993 (Cth).  As was made plain by the Attorney-General at the time (see, for example, p 2 of the Senate Explanatory Memorandum for the Bill which became the 1993 Act), most of the provisions to be inserted by the amending Act (including the ones presently under discussion) were being enacted in order to give effect to the recommendations of the Report of the Review of the Administrative Appeals Tribunal, which report had been presented to both the Attorney-General and the President of the Tribunal in November 1991.

26                  In that Report, what became subss 42A(8) and (9) had been dealt with together and what became subs 42A(10) had been dealt with separately.

27                  As to what became subss 42A(8) and (9), the report had identified as a problem (see App 9, Proposal 28) the following:  “An application which has been dismissed for failure to appear cannot at present be reinstated although such failure is found to be excusable”.  Its proposed amendments to overcome that problem had been to provide (relevantly): first, that “the applicant may apply to the Tribunal within 28 days of receipt of notification of dismissal for a direction that the dismissal be vacated”; and, secondly, that “if the Tribunal is satisfied that it is appropriate to do so, it may so direct”.

28                  As to what became subs 42A(10), the report had identified as a problem (see App 9, Proposal 29) the following:

“The amendment proposed by Proposal 28 would deal with the situation of vacation of a dismissal after failure to appear, and that failure is later found to have been excusable.  There remains a need, both generally and if Proposal 23 [which was that an applicant be permitted to ‘discontinue’ an application in writing] be enacted, for there to be a power to vacate a dismissal where the application has been dismissed by administrative error on the part of the AAT.”

In other words, the problem identified was the absence of a “slip” rule.  The report’s proposed amendment to overcome that problem had been to provide that “the Tribunal may vacate the dismissal of any application for review where such dismissal has occurred through administrative error on the part of the Tribunal”.

29                  The Senate Explanatory Memorandum for the Bill which became the 1993 Act, in explaining the clause which became, without debate or amendment, subs 42A(10), adopted (at p 11) the language which had been used in the report, saying that the clause provided for the Tribunal “to reinstate an application which has been dismissed through administrative error on the part of the Tribunal”.

30                  Having said something of subss 42A(8) to (10) of the AAT Act, it is necessary for us now to set out more of the circumstances in which the original application to this Court was made.

31                   When Mr Brehoi filed his application dated 9 September 1997 in the Tribunal, he included in that application, as his usual address, Silverwater Correctional Centre (“Silverwater”) and, as his postal address, the name and address of a firm of solicitors (Mr Brehoi was then serving his sentence at Silverwater).  Then, on 25 November 1997, the Tribunal received notice of a change of solicitors for Mr Brehoi to a firm called Kinleys.

32                  On 19 December 1997, Mr Brehoi was paroled in respect of his then-current sentence, but was immediately taken into immigration detention, still at Silverwater.  On 2 January 1998, however, Mr Brehoi was transferred from Silverwater to Villawood Detention Centre (“Villawood”).

33                  It is apparent from various documents before this Court extracted from the Tribunal’s file regarding Mr Brehoi that Mr Brehoi’s transfer to Villawood was a matter of which the Tribunal had become aware before 2 March 1998, although not as a result of any formal communication from Mr Brehoi advising of a change in the usual address which he had included in his application for review.  At the same time, however, a note dated 26 February 1998, handwritten by a Tribunal officer on a letter to the Registrar of the Tribunal from Kinleys, which letter had been written to advise the Tribunal that it no longer acted for Mr Brehoi, said the following, “AATCAMS [the Tribunal’s case management system] updated. A[pplicant]’s address left as c/- Silverwater Correctional Centre. To confirm details for posting corro. with Carolyn before sending out.”

34                  On 2 March 1998, the date upon which the Tribunal dismissed Mr Brehoi’s application for review, it wrote to him, enclosing a copy of the Tribunal’s decision.  However, it wrote to him at Silverwater, rather than at Villawood. On 13 March 1998, the Tribunal received its letter back, marked “Return to Sender” and“No longer at this address”.

35                  It would appear that, having been recaptured on either 10 or 11 April 1998, Mr Brehoi faxed a letter to the Tribunal on 27 April 1998, addressed to the particular member of the Tribunal who had dismissed his application under subs 42A(2).  It is proper to treat that letter (which, interestingly, contained no assertion by Mr Brehoi that he had been unaware that 2 March 1998 was to be the date for the hearing of his application, although he has subsequently made that assertion) as an application by Mr Brehoi under s 42A of the AAT Act for the reinstatement by the Tribunal of his dismissed application for review.

36                  On 30 April 1998, a Deputy Registrar of the Tribunal replied to that faxed letter as follows,

“I refer to your letter dated 27 April 1998 sent by facsimile and am directed to reply as follows.

The Tribunal’s records indicate that you were given notice of the proposed hearing on 2 March 1998 and in fact, arrangements had been made for your attendance.  The Tribunal was informed that you had escaped from custody some time prior to that date.  Accordingly, it considered it appropriate to exercise powers conferred by section 42A(2) of the Administrative Appeals Tribunal Act 1975.

This meant that the application was dismissed because you failed to appear and the failure to appear was apparently without good cause.

In these circumstances, an application to reinstate the appeal can only be made within 28 days after receiving notification that the application has been dismissed.  This is provided for in subsection 42A(8).

Your application appears to be well outside that time limit.  I am therefore directed to advise you that it is not possible to reinstate that particular application.”

37                  There are a number of features of this letter about which comment should be made.

38                  First, the Deputy Registrar did not say by whom she had been directed to write the letter. However, since Mr Brehoi had addressed his letter to the particular Tribunal member who had dismissed his application and since the Deputy Registrar’s letter purported to inform Mr Brehoi of what “[t]he Tribunal” had considered it appropriate to do on 2 March 1998, the better inference seems to be that the Deputy Registrar’s letter had been written at the direction of the particular Tribunal member concerned.  Nevertheless, it would have been better had the Deputy Registrar named the person by whom she had been directed to write.

39                  Secondly, the particular Tribunal member concerned appears to have been of the view that only subss 42A(8) and (9) were of potential relevance in Mr Brehoi’s circumstances; subs 42A(10) was not.  That, it appears from the letter, was because Mr Brehoi’s failure to appear at the hearing of his application on 2 March 1998 was “apparently without good cause”.  The view of the particular Tribunal member concerned that subs 42A(10) was not of potential relevance in Mr Brehoi’s circumstances accords with the purpose of the subsection’s inclusion in the AAT Act, as disclosed both by the Report of the Review of the Administrative Appeals Tribunal and by the Senate Explanatory Memorandum for the Bill which became the 1993 Act.

40                  Thirdly, assuming that only subss 42A(8) and (9) were of potential relevance in Mr Brehoi’s circumstances, so that Mr Brehoi’s reinstatement application was required to be made within twenty-eight days “after receiving notification that the application has been dismissed”, the reason for the assertion by the particular Tribunal member concerned that Mr Brehoi’s application for reinstatement “appears to be well outside” that twenty-eight day time limit is not self-evident from the evidence before this Court.

41                  In his faxed letter, Mr Brehoi had made no assertion about his having received notification of the Tribunal’s decision of 2 March 1998 on any particular date, but he had referred to his having been “told by your office to submit this letter outlining my reasons for leaving Villawood Detention Centre and not attending the A.A.T. on the scheduled date”. Obviously, that communication had occurred after Mr Brehoi had become aware of the Tribunal’s decision of 2 March 1998, but it seems unlikely that that communication had occurred more than twenty-eight days before 27 April 1998, since Mr Brehoi had not been recaptured until either 10 or 11 April 1998.  Indeed, Mr Brehoi asserted in an affidavit which was read in support of his application before the primary Judge that he had been unaware, until 21 April 1998, of the dismissal, on 2 March 1998, of his application, having received on that day a fax from the AAT stating that his application had been dismissed.  (Thus, on 21 April 1998, at the latest, Mr Brehoi was, on his own account, furnished with a document setting out the terms of the decision of the Tribunal: see par 44(2A)(a) of the AAT Act.)

42                  We have already referred to the Tribunal’s writing to Mr Brehoi at Silverwater on 2 March 1998, informing him of its dismissal of his application for review, and to the return of the letter to the Tribunal on 13 March 1998.  Of course, it may be that the Tribunal again wrote to Mr Brehoi, this time at Villawood, on or shortly after 13 March 1998, again seeking to inform him of the dismissal of his application.  However, there is no evidence before this Court that such a letter was sent.

43                  It may be that the particular Tribunal member concerned took the view that Mr Brehoi had received notification of the dismissal of his application within the meaning of subs 42A(8) when the Tribunal’s letter of 2 March 1998 would have been received by Mr Brehoi at Silverwater in the ordinary course of post, if he had been there at the time.  Alternatively, it may be that, if the Tribunal did send a second letter to Mr Brehoi, this time at Villawood, on or shortly after 13 March 1998, the particular Tribunal member concerned took the view that Mr Brehoi had received notification of the dismissal of his application within the meaning of subs 42A(8) when the Tribunal’s second letter would have been received by Mr Brehoi at Villawood in the ordinary course of post, if he had been there at the time.  Either of those views about the meaning of the notion of “receiving notification” within the meaning of subs 42A(8) may or may not have been correct.

44                  Of course, if Mr Brehoi, in light of the raising of the matter by this Court, now considers that the reinstatement application which he made to the Tribunal on 27 April 1998 has not yet been determined by the Tribunal according to law, it would be open to him to take that matter up with the Tribunal.  Although the Tribunal’s putting subs 42A(10) to one side when dealing with Mr Brehoi’s reinstatement application appears at first blush to have been correct, given the purpose of the enactment of that provision, it may be that, after a fuller examination of the facts and consideration of the meaning of the notion in subs 42A(8) of “receiving notification”, the Tribunal might well be persuaded that Mr Brehoi had made his reinstatement application in time for the purposes of the latter subsection.  In that case, the Tribunal would, it appears, continue to have power to determine that reinstatement application: see, for example, Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 (Beaumont, Heerey and Finkelstein JJ) and would, no doubt, determine it on its merits.

45                  In all the circumstances, Mr Brehoi’s application under O 52, subr 15(2), of the Rules for leave to file and serve a notice of appeal outside the time permitted by O 52, subpar 15(1)(a)(i), of the Rules is dismissed with costs.

46                  We include this paragraph by way of addendum to our reasons for judgment.  After we had completed the above reasons, we received from Mr Brehoi on 11 June 1999 a letter alleging that we had denied him procedural fairness in the hearing of his application.  The circumstances out of which the allegation arose were as follows.  When Mr Brehoi began his oral submissions before us on 3 June 1999, he asserted to us that he had earlier posted to the Court written submissions in the matter.  After we had informed Mr Brehoi in response that the Court had not received any such written submissions, Mr Brehoi then proceeded with his oral submissions.  No time limits were placed upon him in the presentation of those oral submissions and it was obviously open to him during the course of those oral submissions to repeat any submission which he had earlier reduced to writing.  In fact, Mr Brehoi did address the Court orally for some considerable time.  In the circumstances we have just outlined, Mr Brehoi’s allegation in his letter that for his application to proceed without our having had his written submissions before us at the time constituted a denial of procedural fairness could not possibly succeed.

Associate:

Dated:              16 June 1999