FEDERAL COURT OF AUSTRALIA

Metera v Administrative Appeals Tribunal [2008] FCA 1627

ADMINISTRATIVE LAW – Procedural fairness – legitimate expectation

PRACTICE AND PROCEDURE – Administrative Appeals Tribunal – application for extension of time to file and serve an application for judicial review – whether it is ‘in the interests of the administration of justice’ to grant an extension of time – s 477A(2) of the Migration Act 1958 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Migration Act 1958 (Cth) ss 474, 476A(1)(b), 477(2), 477A(1), 477A(2), 483, 499, 500, 501

Century Metals and Mining NL v Yeomans and Another (1989) 40 FCR 564 considered

Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299 applied

Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648 considered
Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567 considered

Jeffers v R (1993) 112 ALR 85 considered

Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 considered

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 considered

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 considered

Pomare v Minister for Immigration and Citizenship [2008] FCA 458 considered

Renton v Bradbury & Anor [2001] QSC 167 considered  

THOMAS MICHAEL METERA v ADMINISTRATIVE APPEALS TRIBUNAL and MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 1492 of 2008

COWDROY J

4 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The Applicant pay the costs of the Second Respondent.

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

REASONS FOR JUDGMENT

1                     The applicant applies for an extension of time in which to file and serve a Notice of Appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) delivered on 31 July 2008. Such decision affirmed the decision of a delegate of the second respondent (‘the Minister’) to cancel the applicant’s Class TY Subclass 444 Special Category Visa (‘the visa’) under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’).

FACTS

2                     The applicant was born in New Zealand in 1967 and is a citizen of that country. Using the visa the applicant first entered Australia on 11 July 1983 when he was 16.

3                     The applicant has a long history of criminal offences in Australia and has been convicted of a series of offences between 21 June 1983 and 1 March 2005, including larceny, motor vehicle theft, assault, aiding and abetting, armed robbery with an offensive weapon, common assault and break and enter. The applicant has been sentenced to periods of imprisonment in respect of several of such convictions.

4                     On 30 November 1992 the applicant received a warning from the Minister that he risked deportation if convicted of any further offences. On 29 August 2007, following convictions for further offences, a delegate of the Minister sent to the applicant a notice of intention to consider cancellation of the visa. On 19 January 2008 a delegate of the Minister cancelled the applicant’s visa pursuant to s 501(2) of the Act on the ground that the applicant did not pass the character test.

5                     The character test is defined in s 501(6) of the Act. A person does not pass the character test if, inter alia, ‘the person has a substantial criminal record (as defined by subsection (7))’: see s 501(6)(a) of the Act. Section 501(7) provides that a person has a ‘substantial criminal record’, if, inter alia, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)), or the person has been sentenced to two or more terms of imprisonment (whether on one or more occasions) where the total of those terms is two years or more (s 501(7)(d)). The applicant does not dispute that he does not pass the character test.

6                     The applicant applied to the Tribunal for a review of the delegate’s decision on 11 February 2008. However as the application was made outside of the nine day time limit prescribed by s 500(6B) of the Act the Tribunal dismissed the application on the ground of lack of jurisdiction. Subsequently, as a result of this Court’s decision in Pomare v Minister for Immigration and Citizenship [2008] FCA 458, the applicant was renotified of the decision to cancel the visa on 8 May 2008. The applicant then reapplied to the Tribunal for a review of the delegate’s decision on 14 May 2008.

THE TRIBUNAL DECISION

7                     In its reasons for decision the Tribunal referred to the ‘Visa Refusal and Cancellation under Section 501 of the Migration Act – Direction No. 21’ made by the Minister under s 499 of the Act (‘Ministerial Direction No. 21’). Such Direction sets out three primary considerations which a decision-maker is required to address, namely:

(a)      the protection of the Australian community, and members of the community;

(b)      the expectations of the Australian community; and

(c)      in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interest of the child or children.

8                     In applying Ministerial Direction No. 21 the Tribunal gave detailed consideration to the factual circumstances surrounding the applicant’s family arrangements, the best interests of his children and the interests and expectations of the community. Having done so, the Tribunal concluded that ‘the strength of community protection and expectations’ outweighed the best interests of the children.

9                     By its judgment delivered on 31 July 2008 the Tribunal affirmed the delegate’s decision.

APPLICATION BEFORE THIS COURT

10                  The applicant wishes to challenge the Tribunal decision in this Court. The applicant claims that he filed a Notice of Appeal within 21 days of the Tribunal’s decision but that he used the wrong form for this purpose. The applicant claims that ‘when the correct form was used’ the time in which to appeal had expired.

11                  The applicant filed an Application for Extension of Time to File and Serve a Notice of Appeal on 19 September 2008. The applicant filed a draft Amended Notice of Appeal on 14 October 2008.

12                  Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) makes provision for appeals to this Court from decisions of the Tribunal. Pursuant to s 44(1) of the AAT Act, a party to a proceeding before the Tribunal may appeal a Tribunal decision to this Court on a question of law.

13                  The Tribunal decision was made under s 500 of the Act. The Minister submits that such decision is a privative clause decision and accordingly, pursuant to s 474 of the Act, it cannot be challenged, appealed against, reviewed, quashed or called in question in any court.

14                  The Court upholds such submission. It follows that s 483 of the Act applies. Such section provides:

Section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to privative clause decisions or purported privative clause decisions.

15                  It follows that no appeal lies to this Court in respect of the decision sought to be appealed from, and to grant leave to the applicant to appeal would be futile.

16                  The applicant could have filed an Application for Judicial Review of the Tribunal’s decision under s 476A(1)(b) of the Act. Such application must be made within 28 days of the actual notification of the Tribunal’s decision (s 477A(1)). If no application is filed within that time, the Court has a discretion to extend the 28 day period by up to 56 days if the application is made within 84 days of the actual notification of the decision (s 477A(2)(a)) and the Court is satisfied that it is ‘in the interests of the administration of justice’ to do so (s 477A(2)(b)). Accordingly, pursuant to s 477A(2)(a) the applicant had until 23 October 2008 to apply for such an extension of time.

17                  At the hearing before this Court on 17 October 2008 the applicant was informed of the above alternative. The applicant requested the Court to treat his application as being an application pursuant to s 476A(1)(b) of the Act. The Court has considered the circumstances leading to this application and takes into consideration the fact that the applicant is not legally represented. It will therefore regard this application as one pursuant to s 476A(1)(b) of the Act. As such application has been made within the time limit prescribed by s 477A(2)(a) of the Act, the Court is only required to consider under s 477A(2)(b) whether it would be in the interests of the administration of justice to grant an extension of time.

THE APPLICANT’S SUBMISSIONS

18                  The grounds stated in the draft Amended Notice of Appeal, now being considered as a draft Application for Judicial Review, are as follows:

a)      Did the Tribunal fail to take into account a relevant consideration.

b)      Did the tribunal [sic] deny the applicant procedural fairness.

19                  In support of such grounds the applicant submits that the Tribunal failed to consider information relevant to his circumstances contained in the February 2006 Commonwealth Ombudsman’s report entitled ‘Administration of s 501 of the Migration Act 1958 at it Applies to Long-Term Residents’ (‘the Ombudsman’s report’). The applicant claimed that such report was a matter of public record and that the applicant was accordingly not required to bring it to the Tribunal’s attention.

20                  The applicant submits that since he met the definition of a long term resident the recommendations of the Ombudsman were relevant. The applicant submits that he held a legitimate expectation that the Tribunal would consider the Ombudsman’s report. The applicant relies upon the decision in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.

21                  The applicant submits that the Tribunal ignored considerations contained within the Ombudsman’s report. Specifically, the applicant submits that the Tribunal did not consider the compassionate expectations of the Australian community and that the Tribunal did not assess as a ‘primary consideration’ the hardship likely to be experienced by the visa holder including the implications of any serious medical condition suffered by the visa holder.

FINDINGS

22                  In considering whether it is ‘in the interests of the administration of justice’ to grant an extension of time to file an Application for Judicial Review, the Court is guided by the observations of Stone J in Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299. In such decision at [35] her Honour said:

The latter requirement [whether an extension of time is in the interests of the administration of justice] would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.

23                  Although Stone J’s observations were made in the context of s 477(2) of the Act, which provides the criteria to be considered by the Federal Magistrates Court in determining whether it should grant an extension of time to file an application, Stone J at [47]-[48] adopted the above considerations in determining whether this Court should grant an extension of time under s 477A(2). The Court also observes that s 477A(2) of the Act is in substantially the same terms as s 477(2). Accordingly, the Court will adopt the above considerations in its determination of whether to grant an extension of time under s 477A(2) of the Act.

Explanation for delay

24                  The Court notes the applicant’s explanation that he attempted to file an appeal within the prescribed time but utilised the wrong form. The Court records establish that such claim is incorrect. The applicant attempted to file a Notice of Appeal on 12 September 2008, but the document was returned to him by the Court registry with the advice that the time for filing such appeal had expired and that an extension of time was required. It follows that no appeal was sought to be filed within the prescribed time limit.

25                  Since the applicant lacks legal representation the Court is prepared to accept that a lack of understanding led to his failure to comply with the time constraints. Accordingly, the Court finds that the issue of delay is satisfactorily explained.

Prospects of success

26                  Firstly, the applicant claims that the Tribunal failed to take into account a relevant consideration, namely the recommendations contained in the Ombudsman’s report. However, the Tribunal only failed to take into account a relevant consideration if it was bound to take into account such consideration: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 39 per Mason J.  

27                  The Court observes that the Ombudsman’s report is not a document required to be taken into consideration under Ministerial Direction No. 21, nor under any statutory or other provision. The Court finds that the Tribunal was not required to take the Ombudsman’s report into account in making its decision.

28                  Secondly, the applicant relies upon the High Court’s decision in Teoh in submitting that he held a legitimate expectation that the Minister, having been aware that the applicant had been in Australia for 25 years and had arrived as a child, would take into account the Ombudsman’s report.

29                  In Teoh the High Court determined that a delegate of the Minister had failed to give consideration to the effect of deportation upon a family, being a matter to be taken into account under the United Nations Convention on the Rights of the Child (‘the Convention’). The Convention had been ratified by Australia and the Court held that the respondent had a legitimate expectation that such matter would be considered.

30                  At 291 Mason CJ and Deane J rejected the submission that a convention ratified by Australia but not incorporated into Australian law could never give rise to a legitimate expectation, stating:

… ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.

31                  The Court observes that the recognised sources of legitimate expectations have generally been restricted to material emanating from or adopted by Parliament: see for example Teoh (legitimate expectation arising from the Commonwealth Executive’s ratification of an international treaty); Renton v Bradbury & Anor [2001] QSC 167 (legitimate expectation arising from rules or regulations made in the exercise of a statutory power); Century Metals and Mining NL v Yeomans and Another (1989) 40 FCR 564 (legitimate expectation arising from a public promise made by a Minister); Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648 and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J (legitimate expectation arising from a policy statement made by a Minister).

32                  The Ombudsman’s report has no regulatory status, nor is it a document which has been adopted by Parliament. Accordingly it is not a document which has been the subject of any approval by Parliament, unlike the Convention considered in Teoh. Whilst the applicant claims that the Ombudsman’s report was tabled in Parliament ‘on or around’ 9 February 2006 and was ‘publicly accepted over two years ago’, there is no evidence before the Court that such report was tabled or that, even if such report had been tabled, Parliament has taken any action in regard to it.

33                  In light of the above authority the Court finds that the Ombudsman’s report could not give rise to a legitimate expectation that the recommendations contained therein would be considered by the Tribunal.

34                  The applicant also relies upon the decision of Madgwick J in Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567 at [20] which states inter alia:

Section 499(1) [of the Act] does not empower the giving of directions that would turn a discretion, touching “human fate” (to adopt a phrase used by Toohey J in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 407) into no discretion at all. It follows that there must be a genuine weighing of factors tending to opposite conclusions and no artificial limitation of such factors.

35                  In answer to such submission, the Court observes that the Tribunal considered all relevant aspects of the applicant’s claims, as well as the requirements of Ministerial Direction No. 21. The Court cannot discern any basis for the submission that the Tribunal was constrained so as to fetter its discretion.

36                  For these reasons the Court is satisfied that the draft Application for Judicial Review has no prospects of success. The Court observes that the merits of the applicant’s application are determinative in the Court’s consideration of whether to grant an extension of time: Jeffers v R (1993) 112 ALR 85 at 86.

CONCLUSION

37                  The Court is not satisfied that it is in the interests of the administration of justice to grant an extension of time under s 477A(2) of the Act. Accordingly the Court dismisses the applicant’s application with costs.

Associate:

Dated:         4 November 2008