FEDERAL COURT OF AUSTRALIA

Park v Minister for Immigration and Citizenship [2008] FCA 1648

Migration Act 1958 (Cth) ss 127, 347, 338(3)

Migration Regulations 1994 r 2.55(3)(a), r 4.10(1)(b)

Chung v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 624

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

Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894

Park v Minister for Immigration and Citizenship [2008] FMCA 856

SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66

SZJQC v Minister for Immigration and Citizenship [2007] FMCA 505

HAK SUN PARK, IN HEE KIM, JI HAE PARK and JI SU PARK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 1150 of 2008

MCKERRACHER J

7 November 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an extension of time be dismissed.  

2.                  The applicants do pay the costs of the first respondent to be taxed if not agreed. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicants are Korean citizens.  On 15 July 2000 the applicants were granted Business (Long Stay) visas.  On 9 September 2002 a delegate of the first respondent cancelled the visa of the first applicant.  On 10 September 2002 the applicants applied to the Migration Review Tribunal (the MRT) for review of that decision.  

2                     However on 14 September 2002 the first applicant requested the cancellation of the application.  On 17 August 2007 the first applicant filed a further application for review.  The MRT affirmed the decision of the delegate and the applicants sought judicial review in the Federal Magistrates Court. 

3                     This is an application for an extension of time within which to file and serve a notice of appeal against the judgment of a Federal Magistrate delivered on 24 June 2008 (Park v Minister for Immigration and Citizenship [2008] FMCA 856).  In that judgment, his Honour dismissed the application for judicial review of the decision of the MRT which had been handed down on 14 February 2008.  This application was lodged on 22 July 2008 – only just out of time. 

THE APPLICANTS’ CLAIMS

4                     The applicants were granted Business (Long Stay) Visas on 15 July 2000.  The first applicant was sponsored by Bakers Delight/East West Group Pty Limited; the remaining applicants were granted visas on the basis that they were part of the first applicant’s family unit.  The visa of the first applicant was cancelled due to a breach of condition 8107 which provided that he must not change employer or occupation in Australia.

5                     In October 2007, subsequent to the applicants’ further application for review filed on 17 August 2007, the MRT invited the first applicant to comment on the fact that his application was out of time.  The first applicant alleged that he was not properly notified of the decision to cancel the visa.  He said that because he was not informed of the decision, he was unable to lodge the review application on time.

BEFORE THE MRT

6                     The MRT found that the applicants’ application for review was not a valid application and therefore the MRT had no jurisdiction to review the delegate’s decision.  The MRT found that the delegate’s decision notice complied with s 127 of the Migration Act 1958 (Cth) (the Act) and r 2.55(3)(a) of the Migration Regulations 1994 (the regulations).  

7                     The first applicant was taken to have been notified of the decision on 9 September 2002 and therefore the prescribed period of 7 working days to lodge the application for review ended on 18 September 2002.  

8                     In fact the application for review was received on 17 August 2007.  This was almost 5 years after the prescribed period had ended.  Since the application was received outside of the time period, the MRT considered it to not be a valid application.

ON REVIEW BY THE FEDERAL MAGISTRATES COURT

9                     Before the Federal Magistrate the applicants claimed:

1.                  The MRT failed to provide the first applicant with an opportunity to present his case before the MRT;

2.                  The first applicant was not properly notified that the first respondent was considering cancelling his visa and was not properly notified of the decision to cancel his visa.  He was given no time to prepare an argument for the MRT as he was arrested the next day and detained in the Detention Centre.  The MRT failed to investigate this fact according to law.

10                  The Federal Magistrate found the MRT was correct in finding that the first applicant was lawfully notified of the cancellation decision and that the MRT had no jurisdiction as the application for review was made outside the prescribed time.  His Honour held that the MRT had no discretion to extend that time period.  The Federal Magistrate found no jurisdictional error in the decision of the MRT.

11                  The Federal Magistrate also referred to the applicants’ contention that the first applicant was placed under duress to withdraw their first application to the MRT; however his Honour found no evidence to support this assertion.

GROUNDS OF APPEAL

12                  Accompanying the application was an affidavit annexing a draft notice of appeal which raises the following grounds.

1.                  The MRT should have investigated the reason for the first applicant agreeing to withdraw his application;

2.                  The first applicant was told by an officer at the Detention Centre who had an interview with him that unless he withdrew his application from the MRT he would never get out of the Detention Centre;

3.                  The first applicant lost a fair chance of presenting his case before the MRT against his will.

13                  The applicants did not appear at the hearing of the application. 

ANALYSIS

Extension of time - principles

14                  An applicant seeking leave to file and serve a notice of appeal out of time must demonstrate special reasons for the grant of that leave:  O 52 r 15(2) of the Federal Court Rules (FCR).  Guiding principles were articulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 as follows:

(a)        applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.  The applicant must show an acceptable explanation of the delay; it must be ‘fair and equitable in the circumstances’ to extend time;

(b)        action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

(c)        any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

(d)        the mere absence of prejudice is not enough to justify the grant of an extension; and

(e)        the merits of the substantive application are to be taken into account in considering whether an extension of time should be granted. 

15                  By O 52 FCR, the manner in which appeals are to be brought before the Court is regulated.  Pursuant to O 52 r 15(1)(a)(i) a notice of appeal must be filed and served within 21 days after the date when the judgment appealed from was pronounced.  However, O 52 r 15(2) provides that a judge may for special reasons and at any time give leave to file and serve a notice of appeal.  The expression ‘at any time’ clearly refers to notices of appeal which are filed outside the 21 day period.

16                  The expression ‘special reasons’ has received ample attention.  In Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 considerations to which the Court should have regard were said to include the length of delay involved in filing a notice of appeal, whether the respondent will suffer prejudice by reason of the delay and finally the nature of the injustice to the applicant if the applicant is denied the right to appeal. 

17                  In considering the question of injustice, the question may arise as to the strength of the appeal.  Little injustice may be occasioned if an appeal were hopeless. 

The legislative framework

18                  Section 127 of the Act provides that when the Minister decides to cancel a visa, the applicant is to be notified in the prescribed way.  The notification must specify the ground for cancellation; state whether the decision is reviewable under Pt 5 or Pt 7; and where the decision is reviewable, state that the decision can be reviewed, the time in which the application for review may be made, who can make the review and where it can be made.

19                  Regulation 2.55 relates to the giving of documents relating to proposed cancellation, cancellation or revocation of cancellation of a visa.  Regulation 2.55(3)(a) provides that the notification of cancellation of a visa may be personally handed to the person.

20                  Section 338(3) provides that a decision to cancel a visa held by a non-citizen who is in the migration zone (Australia) at the time of the cancellation is an MRT reviewable decision.

21                  Regulation 4.10(1)(b) provides, in regards to s 347, that the time for lodgment of an application with the MRT for an MRT reviewable decision covered by s 338(3) starts when the applicant receives the notice of the decision and ends at the end of 7 working days after the day on which the notice is received.

The Grounds

22                  Before turning to the grounds, this is a brief summary of the key events:

On 9 September 2002 a delegate of the first respondent:

·                    notified the first applicant that the delegate was considering cancelling his visa;

·                    conducted an interview with the first applicant;

·                    made the decision to cancel the visa; and

·                    provided written notice of that decision to the first applicant by handing him a copy of the decision.

23                  The first ground asserts that ‘the Tribunal should have investigated the reason why I had to agree to withdraw my application from the Tribunal’.  This ground is misconceived.  The Tribunal’s duty was first to determine whether it had jurisdiction to accept an application for review made 5 years out of time.  It correctly found it did not have jurisdiction to accept the application. 

24                  The first applicant was taken to have been notified of the decision on 9 September 2002 and therefore the prescribed period of 7 working days to lodge the application for review ended on 18 September 2002.  

25                  The application for review was received on 17 August 2007, almost 5 years after the prescribed period had ended.  

26                  There is no discretion to extend the time period: SZJQC v Minister for Immigration and Citizenship [2007] FMCA 505; SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66 and Chung v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 624.  

27                  The Federal Magistrate also observed and there appears to be no challenge to this observation, that even if the MRT had had a discretion, it was difficult to see how it could be exercised favourably after a delay of 5 years.  I also agree with that observation.

Grounds 2 and 3

28                  Grounds 2 and 3 form one complaint and should be read together.  In these grounds the first applicant asserts:

1.       I was told by the officer at the detention centre who had interview with me that unless I withdraw my application from MRT, I would never get out of the detention centre

2.       I lost a fair chance of presenting my case before the Tribunal against my will. 

29                  Grounds 2 and 3 are factual assertions that were expressly rejected by the learned Federal Magistrate.  These purported grounds do not identify any error in the judgment of his Honour, nor any error in the decision of the Tribunal in finding that the applicants’ application for review was out of time. 

30                  These grounds cannot succeed.

31                  The approach of the Federal Magistrate and his Honour's conclusions were correct.

CONCLUSION

32                  Accordingly, the application for an extension of time will be dismissed.  The applicants are to pay the costs of the first respondent to be taxed if not agreed. 

Associate:

Dated:         19 November 2008