FEDERAL COURT OF AUSTRALIA

Metera v Minister for Immigration and Citizenship [2008] FCA 1967

Federal Court Rules O 52 r 10(2A)

Migration Act 1958 (Cth) ss 476A(1)(b), 477A(2), 501(2), 501(6)

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited

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

NSD 1858 of 2008

BENNETT J

15 DECEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

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

2.                  The applicant pay the first respondent’s costs in the amount of $1500.

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 applicant seeks leave to appeal from a decision of a judge of this Court dated 4 November 2008 and the orders that his Honour made dismissing the applicant’s application with costs (Metera v Administrative Appeals Tribunal [2008] FCA 1627).  That application was an application 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’) which had been delivered on 31 July 2008.  The decision of the Tribunal affirmed a decision of the delegate of the Minister to cancel the applicant’s Class TY Subclass 444 Special Category Visa under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’).

2                     The primary judge noted that the applicant did not dispute that he did not pass the character test defined in s 501(6) of the Act.  It was on the basis of that failure that the applicant’s visa was cancelled pursuant to s 501(2) of the Act. 

3                     His Honour considered the basis upon which the application was brought and concluded that the Court would regard the application as one pursuant to s 476A(1)(b) of the Act.  It followed that the application was made within the time limit prescribed by s 477A(2)(a) of the Act.  Accordingly, his Honour was 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.  In considering this issue, the primary judge turned to consider the draft grounds of appeal.  There were two such grounds:

1.                  did the Tribunal fail to take into account a relevant consideration; and

2.                  did the Tribunal deny the applicant procedural fairness.

4                     The primary judge treated those two grounds as dealing with the same subject matter, as there were no particulars specifically given of the alleged denial of procedural fairness.  His Honour’s findings concerned the question whether the Tribunal was obliged to take into account an Ombudsman report and the recommendations contained therein.  His Honour concluded that the report was not a document required to be taken into consideration under Ministerial Direction No. 21 nor under any statutory or other provision.  Accordingly, his Honour found that the Tribunal was not required to take the Ombudsman report into account in making its decision.

5                     His Honour also dealt with an assertion that the applicant had a legitimate expectation that the Minister would take the Ombudsman report into account and that the recommendations contained therein would be considered by the Tribunal.  His Honour concluded that the report could not give rise to such legitimate expectation. 

the current application

6                     In the affidavit supporting his application for leave to appeal and in his draft notice of appeal, the applicant has raised the same grounds as those before the primary judge.  That is, the applicant asserts that the Tribunal failed to take into account a relevant consideration and that the Tribunal denied the applicant procedural fairness.  No further particulars are given of the grounds and I take it that the applicant is asserting that his Honour erred in coming to the conclusions he did in relation to those two grounds.

7                     The applicant has been unable to elaborate on any error on the part of the primary judge. 

8                     The Minister also points out that the application for leave to appeal has been made out of time, as O 52 r 10(2A) of the Federal Court Rules requires that an application for leave to appeal from an interlocutory judgment be filed within seven days after the judgment was pronounced, no further time having been allowed.  The Minister submits that the applicant has failed to provide any explanation whatsoever for the delay and, further, that the application for leave to appeal has no prospect of success.

Extension of time

9                     The application for leave to appeal was filed on 28 November 2008, 17 days outside the time period prescribed by O 52 r 10(2A).  Accordingly, the applicant requires an extension of time for the filing of the application for leave to appeal.  Although there is no affidavit evidence providing any explanation for the delay, the applicant has informed the Court that he was advised by another person that he had 28 days in which to file an application for leave to appeal.  It is clear that the applicant does not have a detailed knowledge of the relevant requirements and I accept that assertion.  While it is not a sufficient explanation for the delay, if I were of the view that the applicant’s appeal had prospects of success, I would consider granting the necessary extension of time. 

Does the appeal have any prospect of success?

10                  I will treat the two grounds raised by the applicant as one.  That is, in the absence of any particulars of the alleged denial of procedural fairness, I will assume that the applicant is asserting that he was denied procedural fairness because the Ombudsman report was not taken into account by the Tribunal. 

11                  I see no error in the reasoning of the primary judge in relation to his Honour’s analysis of the obligations on the Tribunal to deal with the Ombudsman report.  Those conclusions were in accordance with Mason J’s statement in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 where his Honour said:

The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.

12                  His Honour concluded that the Tribunal was not required to take into account the Ombudsman report in making its decision and I see no error in that conclusion, nor in the conclusion that the report could not have given rise to a legitimate expectation that the recommendations in the report would be considered by the Tribunal.

conclusion

13                  The applicant has not demonstrated that the decision of the primary judge is attended with sufficient doubt to warrant its reconsideration by the Full Court, nor has he established any error in his Honour’s reasons.  Accordingly, I consider that the appeal has no prospect of success.  It follows that the application for an extension of time to file the application for leave to appeal should be refused.  The applicant should pay the first respondent’s costs.

Associate:

Dated:         22 December 2008