FEDERAL COURT OF AUSTRALIA

Turaga v Minister for Immigration and Border Protection [2017] FCA 58

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time be refused.

2.    The application be dismissed.

3.    The applicant pay the costs of the first respondent, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER J:

THE APPLICATION

1    Mr George Turaga applies for an extension of time of more than six years within which to bring an appeal from a decision of the Administrative Appeals Tribunal. In that decision, the Tribunal refused to extend time within which Mr Turaga could seek review of a decision of the Minister for Immigration and Citizenship (as the Minister was then was) to cancel his visa on the basis that it had no jurisdiction.

BACKGROUND

2    Mr Turaga is a non-Australian citizen who previously held a Class BS subclass 100 (Partner) visa (Partner visa). He was served with a notice of intention to consider cancellation of his visa dated 27 August 2009 after he was sentenced to a term of imprisonment of 12 months or more. On 10 March 2010, a delegate of the Minister made a decision that Mr Turaga’s Partner visa be cancelled pursuant to s 501(2) of the Migration Act 1958 (Cth).

3    Mr Turaga was informed of the delegate’s decision to cancel his Partner visa by letter from an officer of what was then the Department of Immigration and Citizenship. The letter was dated 19 March 2010. The letter also informed Mr Turaga that he was entitled to have the decision reviewed by the Tribunal, but that if he wished to do so, he must lodge his application for review within nine days after the day on which he was notified of the decision to cancel his Partner visa. It also informed him that he was taken to have been notified of the decision when the notification letter and the attached information was delivered to him or his authorised representative and if it was delivered by hand, facsimile or email he was taken to have received it on the actual day of delivery.

4    Mr Turaga acknowledged receipt of the Notice of visa cancellation of his Partner visa by signing an acknowledgement of receipt on 19 March 2010. By letter to the Tribunal dated 20 March 2010, he sought review of the delegate’s decision to cancel his Partner visa. The application to the Tribunal was not received by the Tribunal’s Western Australia Registry, to which it was addressed, until 31 March 2010. On 1 April 2010, the Tribunal wrote to the Minister advising of the application for review which it said was made on 31 March 2010, being the date of receipt of the application. On 12 April 2010, the Tribunal made a determination that it did not have power to review the delegate’s decision and made an order on that date pursuant to s 500(6B) of the Migration Act that the Tribunal did not have jurisdiction to deal with the application for review. The Tribunal informed Mr Turaga and the Minister of its decision by letter dated 12 April 2010. The letter was addressed to Mr Turaga at care of Casuarina Prison, Locked Bag 1, Kwinana WA 6965. It also informed Mr Turaga on the same date (12 April 2010) that:

If you think the decision is wrong, you have the right to appeal against it to the Federal Court under section 44 of the Act. The Federal Court will decide if the Tribunal has made an error of law in reaching its decision. If you are considering an appeal, you may wish to obtain legal advice without delay.

Please note that an appeal to the Federal Court must be lodged either

-    no later than 28 days after you receive a copy of the Tribunal’s decision; or

-    if the decision was posted to you at the last address you gave us, no later than 28 days after it was delivered to that address.

You may apply to the Court to extend the time to appeal.

5    As a result of cancellation of the Partner visa, Mr Turaga does not hold a valid visa and is an unlawful non-citizen. Consequently he is in immigration detention at the Perth Immigration Detention Centre.

6    Mr Turaga lodged an application in this Court seeking the extension of time under r 33.13 of the Federal Court Rules 2011 (Cth) (FCR) within which to appeal pursuant to s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The application is supported by Mr Turaga’s affidavit, sworn on 11 August 2016.

STATUTORY FRAMEWORK

7    Section 500(6B) of the Migration Act at all relevant times has provided:

500    Review of decision

…

(6B)    If a decision under section 501 of this Act relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.

(emphasis added)

8    Pursuant to s 501G(1) of the Migration Act, if a decision is made under s 501(1) or s 501(2) to refuse to grant a visa to a person or to cancel a visa that has been granted to a person, the Minister must give the person a written notice which contains the matters set out in (c)-(f) (there is no challenge that that was done). Section 501G(3) provides that a notice under subs (1) must be given in the prescribed manner.

9    At the material time, reg 2.55 of the Migration Regulations 1994 (Cth) relevantly provided as follows:

2.55    Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation

(1)    This regulation applies to:

(a)    ...

(b)    the giving of a document under subsection 501G(3) of the Act relating to a decision to cancel a visa under subsection 501(1) or (2) or section 501B or 501 F of the Act; and

(c)    …

…

(3)    Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:

(a)    by handing it to the person personally;

(b)    …

Note    Subregulation (3A) deals with giving documents mentioned in paragraphs (1)(a) and (c) to minors.

(4)    Subject to subregulation (4A), for a document mentioned in paragraph (1) b):

(a)    if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in subregulation (3); and

(b)    if the person has held the visa for at least 1 year when the document is to be given:

(i)    Immigration must try to find the person; and

(ii)    the Minister must give the document in one of the ways mentioned in subregulation (3).

Note    Subregulation (4A) deals with giving documents mentioned in paragraph (1)(b) to minors.

10    Rule 33.13 FCR provides, by (1), that:

A person who wants to apply for an extension of time within which to start an appeal mentioned in section 44(2A) of the AAT Act must file an application, in accordance with Form 67.

Note:    The application may be made during or after the period mentioned in section 44(2A) of the AAT Act.

And by (2) that:

The application must be accompanied by the following:

(a)    the decision from which the appeal is to be brought;

(b)    the reasons for the decision, if published;

(c)    an affidavit stating:

(i)    briefly but specifically, the facts on which the application relies; and

(ii)    why the appeal was not filed within time;

(d)    a draft notice of appeal that complies with rule 33.12.

Note 1:    The Registrar will fix a return date and place for hearing and endorse those details on the application.

Note 2:    A lawyer may file an application starting migration litigation only if the application includes or is accompanied by a certificate under section 486I of the Migration Act 1958 signed by the lawyer.

Note 3:    For migration litigation, lawyer has the meaning given by section 5 of the Migration Act 1958.

IN THE TRIBUNAL

11    The reasoning of the Tribunal for the conclusion that it had no jurisdiction was set out in [12]-[16] where the Tribunal noted:

12.    Pursuant to subs (6B) of s 500 of the Act an application to the Tribunal for review of the relevant decision “must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1)”. Subsection (6B) expressly excludes the application of para (1)(d) and subss (7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 (Cth), as a result of which the Tribunal does not have the power to grant an extension of the 9-day time limit prescribed by subs (6B).

13.    Pursuant to subs (6B) of s 500 of the Act, however, the prescribed 9-day time limit only applies and commences to run if the person whose visa was cancelled “was notified of the decision in accordance with subsection 501G(1)”. Paragraphs (c)-(f) of s 501G(1) prescribe the various requirements with which a written notice given under that subsection must comply. I have considered the Notice of Visa Cancellation and the documents enclosed therewith which were given to the applicant by the Department on 19 March 2010 and I am satisfied that that notice fully complies with s 501G(1) of the Act and is a valid notice. That notice was, furthermore, given to the applicant in the manner prescribed by reg 2.55(3)(a) of the Regulations, and, pursuant to reg 2.55(5), the applicant is taken to have received that notice when it was handed to him on 19 March 2010.

14.    It follows, pursuant to subs (6B) of s s500 of the Act, that the applicant was required to lodge his application for review with the Tribunal within 9 days after 19 March 2010. Because the 9th day – namely, 28 March 2010 – fell on a Sunday, the prescribed 9-day period expired on Monday, 29 March 2010 (see s 36(2) of the Acts Interpretation Act 1901 (Cth)). In order to comply with subs (6B) of s 500 of the Act, therefore, the applicant’s application for review must have been “lodged with the Tribunal” no later than 29 March 2010.

15.    As previously mentioned, the applicant’s application for review was not received by the Tribunal, and was thus not “lodged with the Tribunal” within the meaning of subs (6B) of s 500 of the Act, until 31 March 2010 – that is, 2 days after the expiration of the 9-day period prescribed by subs (6B). As also previously mentioned, pursuant to subs (6B) the Tribunal does not have the power to grant an extension of the 9-day period prescribed by subs (6B).

16.    It follows that, pursuant to subs (6B) of s 500 of the Act, the Tribunal does not have jurisdiction in respect of the applicant’s application for review: see Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494 at 496.

GROUNDS OF APPLICATION

12    The grounds of the application are (as per the original):

5.    It’s in the service of public interest that this case be heard.

6.    The [Tribunal] clearly was erroneous in it’s decision.

7.    [Mr Turaga] was in incarceration at the time of the [Tribunal] lodgement and has no control over when mail leaves Prison.

8.    [Mr Turaga] at the time wasn’t notified that he has the right to appeal [a ground since abandoned].

EVIDENCE

13    The application was supported by a short affidavit of Mr Turaga confirming that he is a detainee in the Perth Immigration Detention Centre. The grounds of appeal which he would advance if an extension were granted are:

1.    The Tribunal did not take into consideration [Mr Turaga’s] incarceration.

2.    The Tribunal did not take into consideration relevant laws and regulations.

3.    The Tribunal took into consideration irrelevant laws and regulations.

14    Also in evidence is the original letter from Mr Turaga, dated 20 March 2010 in support of his application, which reads as follows, (again, as per the original):

…

I GEORGE TURAGA WRITE AND PLEA WITH YOU TODAY TO HAVE THE CANCELLATION OF MY PERMANENT RESSIDANCE [sic] VISA BE REVIEWED BY THE ADMINISTRATIVE APPEALS TRIBUNAL I HAVE RECEIVED THE NOTE OF CANCELLATION ON THE 19TH OF MARCH, DELIVERED BY HAND I OF ALL PEOPLE KNOW THAT I DON’T PASS THE CHARACTER TEST, WITH ALL MY NOT GOOD PAST MY CRIMINAL RECORD READS EXTREMELY SERIOUS AND DISTRESSING THAT CARRIED A LOT OF WEIGHT IN THE DECISION OF MY VISA BEING CANCELLED I KNOW TOO THAT I HAVE BROKEN MY VOWS TO THE DEPARTMENT ABOUT PAST WARNINGS CONSIDERATIONS OF VISA CANCELLATIONS TODAY I AM SADDENED BECAUSE I CANNOT CHANGE MY PAST. BUT WHAT I ASK FOR MY DEFENCE IS THAT I GET HELP FOR MY FUTURE. I KNOW IT ALL SOUNDS TO [sic] FAMILIAR LIKE MY PAST LETTERS, BUT WITH ALL MY HEART AND GOD’S HELP I REALLY MEAN IT FROM ALL THAT IS WITHIN ME I AM CHANGING EVERYDAY IN HERE [JAIL] FOR THE BETTER. I AM SERIOUS WITH MY WALK AND WORK WITH GOD AND MYSELF MY LAST TIME IN JAIL ONLY MADE ME WORSE THIS TIME IS LIKE A BLESSING IN DISGUISE I HAVE HAD LOTS OF TIME TO RE ASSESS MY LIFE AND TO BUILD A BETTER PERSON OUT OF ME IN HERE AND OUTSIDE I AM IN VERY MUCH NEED OF YOUR GIVING ME A LIFE-LINE THESE VERY LAST TIME SIR/MADAM I CANNOT GO BACK HOME TO FIJI THERE IS NOT A LIFE THERE FOR ME IT’S TRUE I’VE GOT A FEW RELATIVES BACK HOME, BUT THEY’RE LOOKING AFTER THEMSELVES AND NOT KEEN TO BE FEEDING AN EXTRA MOUTH LIKE ME I AM ASHAMED OF MY ACTIONS AND REMORSEFUL TOO

PTO

I COULDN’T EVEN READ THE THINGS THAT I’VE DONE NOT BECAUSE I AM DENIAL BUT BECAUSE IT DISGUSTED ME I MIGHT’VE BEEN A REAL BAD PERSON IN MY PAST, BUT I DON’T BELIEVE I AM BEYOND HELP IT WAS MENTIONED IN MY NOTIFICATION OF VISA CANCELLATION THAT I REFUSED SEX OFFENDERS PROGRAMES [sic] WELL SIR/MADAM IT’S NOT THAT I DID’NT [sic] WANT TO, IT WAS BECAUSE THAT THERE WAS A TIME IN MY LIFE IN HERE THAT I WAS OR RATHER FELT THAT THE COURSES SHOULD’VE BEEN DIVIDED FROM ADULT OFFENDERS AND CHILD OFFENDERS I’M NOT BEEN [sic] JUDGE AND JURY, I’M THE LAST PERSON TO TALK, THE LAST [FIRST] COURSE I DID I DID’NT [sic] GET TO FINISH IT BECAUSE WITH ME BEING A FATHER OF THREE BEAUTIFUL CHILDREN I COULD’NT [sic] HEAR THE STORIES OF CHILD OFFENDERS LIKE I SAID, I AM NOT ONE TO JUDGE BUT IT WAS THE ONLY REASON THAT I DID’NT [sic] PARTICIPATE IN THE PROGRAMES [sic] WHAT I’VE DONE AND DOING IN THE 5 YEARS GONE IN JAIL IS REHABILITATING MYSELF IN OTHER WAYS I AM CURRENTLY ENROLLED IN A BIBLE COLLEGE IN BLACKTOWN, SYDNEY. SINCE I’M A COMMITTED CHRISTIAN NOW GOD HAS CHANGED AND IS CHANGING ME EVERY POSSIBLE WAY THIS IS THE TRUTH I AM NOT USING GOD’S NAME IN VAIN FOR MY GAIN ONLY HIM HAS BEEN THERE FOR ME OVER THE YEARS IN JAIL OTHER WAYS I HAVE BEEN BETTERING MYSELF IN HERE IS LEARNING TRADES I LOVE WORKING AND I REALLY WANT TO WORK WHEN I GET OUT A COMMENT WAS MADE IN THE NOTIFICATION OF MY VISA CANCELLATION THAT I NEVER REALLY HELD DOWN A JOB. SIR/MADAM MY DEFENCE TO THIS IS I WAS ONLY ALLOWED TO WORK ON MAY 25TH 2004 AFTER MY PERMANENT VISA WAS GRANTED IT’S NOT THAT I DID’NT [sic] WANT TO WORK I WANT TO GIVE BACK WHAT THIS BEAUT COUNTRY

PTO

HAS GIVEN TO ME LASTLY I CANNOT HIGHLIGHT MORE THAT I NEED TO BE WITH MY CHILDREN AND THEY NEED TO BE WITH THEIR DAD AS BAD AS I WAS I NEVER ABUSE MY CHILDREN IN ANY FORM I AM A GOOD DAD YOU CAN’T DISMISS THAT I WILL BE PART AND PLAY A FULL PARENTAL ROLE IN RELATION TO MY KIDS THEY ARE ALL AUSTRALIAN CITIZENS. EVERYDAY IN HERE I PRAY AND HOPE TO BE WITH THEM AGAIN THEY LOVE ME TOO AND ASK FOR MY HOME COMING EVERYDAY I ASK YOU TO TAKE INTO ACCOUNT UNDER AUSTRALIAN LAW THAT IT WOULD BENEFIT THE KIDS EMOTIONALLY IF THEIR DAD REMAINS WITH THEM MY SAYING IN RESTORING FAMILY LIFE, MEANT WITH MY KIDS AND NOT WITH MY DE-FACTO A COMMENT MADE IN MY NOTIFICATION SAID THAT EVEN IF I WAS TO BE REMOVED FROM AUSTRALIA, THE USUAL CONTACT I HAVE WITH THEM (PHONE) IS LIKELY TO LIMIT THE KIDS PHYSCOLOGICAL [sic] AND EMOTIONAL DAMAGES. I BEG TO DIFFER BECAUSE NO AMOUNT OF CONTACT CAN COMPARE BEING THERE OR HERE IN PERSON RAISING AND LOOKING AFTER THEM. WITH ALL DUE RESPECT IF YOU’RE GOING TO PREDICT MY WELL-BEING PLEASE DON’T MY ELDER GABRIEL WILL IN [sic] HIS TEEN, THE MOST VULNERABLE TIME TO BE GOOD OR BAD IN A BOYS LIFE I WANT TO BE THERE FOR HIM DIRECT-ING HIM THE RIGHT WAY. AS TOO OF MY OTHER TWO CHILDREN. I’VE BEEN HERE 20 YRS NOW IT IS MY HOME I LOVE THIS COUNTRY AND I AM NO THREAT TO IT MY PAST IS EXACTLY WHAT IT IS, MY PAST I DON’T WANT TO KNOW THAT PERSON ANYMORE I DON’T BLAME THIS COUNTRY OR ANYONE FOR THE BAD PERSON I WAS, BUT MYSELF PLEASE HELP ME HELP MYSELF. I’M 34 YRS [sic] OF AGE NOW AND AGEING I WANT TO DIE OLD AND HAPPY

PTO

HERE WITH MY FAMILY/KIDS, DAD, BROTHER, SISTERS AND RATHER BE A LONELY HOMELESS MAN BACK IN FIJI THIS IS IT FOR ME FINALLY I AM SEEING WHAT IS RIGHT AND GOOD AND LEAVING ALL MY PAST BEHIND ME GOD IS GOOD AND HE REALLY IS WORKING IN MY LIFE I DON’T HAVE TO LIE ABOUT IT. ANY TEMPTATIONS OF DRINKING ALCOHOL WILL BE MET BY THE REMINDER OF WHERE IT TOOK ME, DOWN THE PITTS I’M NOT LIVING THAT LIFESTYLE ANYMORE I BELIEVE I WILL CONTRIBUTE BACK TO THIS HOME COUNTRY OF MINE AUSTRALIA IS KNOWN TO BE THE LAND OF PLENTY, DREAMS, OPPORTUNITIES, EDUCATION, EMPLOYMENT, FAMILY ORIENTATED AND MATE-SHIPS IT’S BEEN A LONG TIME FOR ME AND A LOT OF MISTAKES TO REALISE MY TROUBLESOME LIFE ONLY LED ME INTO TROUBLES, AND BECOMING THE PERSON I DON’T WANT TO KNOW ANYMORE I’VE WRESTLED WITH HIM FOR SO LONG NOW AND I AM WINNING THE GOOD FIGHT IM [sic] MODELLING THE NEW GEORGE TODAY I WILL MAKE A BETTER MAN OUT OF MYSELF. SIR/MAM THESE [sic] IS JUST NOT AN INSPIRED LETTER TO MAKE MYSELF SOUND GOOD BUT ITS [sic] STRAIGHT FROM MY HEART THINKING AN READING WITH YOU I AM A CHANGED MAN I AM LEARNING EVERYDAY [UNREADABLE] BUT NOT DWELLING ON THE WHAT COULD’VE BEEN, BUT THE [sic] COULD BE LASTING, AGAIN JUST TAKE MY THREE BEAUTIFUL KIDS INTO ACCOUNT THEY ARE REALLY LOOKING FORWARD TO SEEING [UNREADABLE] THEY DON’T DESERVE TO BE WITHOUT THEIR DAD THE’RE [sic] GROWING EVERYDAY ON THE PHONE MY TWO BOYS, GABRIEL 10, KAYA 8 ARE PLAYING RUGBY AND CAN’T WAIT FOR DAD TO COME WATCH THEM MY PRINCESS DAUGHTER TIA RANI (9) PLAYS BASKETBALL AND TELLS ME THAT SHE GETS HER ATHLETIC ABILITYS [sic] FROM HER DAD I MADE THE

PTO

DECISION FOR THEM NOT TO COME VISIT ME IN JAIL IT WOULD PAIN ME TO BRING THEM IN HERE, TO BE SUBJECTED TO THAT I’D RATHER HAVE THEM ENJOY THEIR WEEKENDS WITH THEIR FRIENDS I KNOW IT WAS GOING TO BE HARD, BUT I TELL THEM ON THE PHONE THAT I ONE DAY WILL BE TOGETHER AGAIN AND THEYRE [sic] LOOKING FORWARD TO THAT I ONLY WANT THE BEST FOR THEM TO BE APART AGAIN AFTER MY RELEASE WOULD BE JUST DEVASTING [sic] WHO KNOWS IF WE’LL EVEN SEE EACH OTHER AGAIN I NEED YOUR HELP AGAIN FOR THIS LAST TIME PLEASE, IF YOU’RE A PARENT AND YOU LOVE YOUR CHILDREN, IMAGINE IF CAN’T LIVE WITH THEM IN THE SAME COUNTRY. GIVE ME THIS LAST OPPOURTU-NITY [sic] TO SHOW THE DEPARTMENT AND THE COUNTRY THAT I AM REALLY A CHANGED BETTER MAN, IT IS JUST SAD ABOUT MY PAST, BUT IM [sic] LEAVING ALL OF THAT BEHIND AND MOVING FORWARD I AM NOT LYING OF ALL MY PLEA AND CONFESSION, I LEARN’T [sic] THAT RATHER BE A MAN OF YOUR WORD, THAN BEING A COWARD LIVING A DECEITFUL LIFE I LEAVE IT IN GODS [sic] HANDS AND YOURS NOW I’VE TOLD YOU EVERYTHING. PLEASE IF YOU DOUBT ME, LET IT BE KNOWN THAT I WILL UNDERSTAND BUT I TODAY AND FOREVER I HAVE BEEN [UNREADABLE] ABOUT [UNREADABLE] TRUE CHANGE

THANK YOU AND GOD BLESS

[signed GEORGE TURAGA]

…

ARGUMENTS IN SUPPORT OF APPLICATION

15    The short and only point advanced for Mr Turaga is that the Tribunal miscalculated the nine day time period. Other matters were raised in his written submissions, but in oral submissions Mr Turaga expressly confirmed that ‘my only argument, your honour, is the miscalculation of the dates’.

16    For completeness, I record the other reasons given for the delay, but rely upon the calculation assurance given by Mr Turaga in his oral argument. The other matters recorded in written submissions were:

Acceptable reasons for delays:

a)    [Mr Turaga’s] incarceration then detention and the limited resources available in both prison and detention, in comparison to another person in the community

b)    This application will deal with important issues (the Australian international obligations under international laws and conventions) and for Justice, Fairness and for the sake of Public Interests it should be allowed

c)    It’s clearly proven that the Tribunal had erred in calculating the 9 days required by section 500(6B)

d)    Lack of legal advice due to [Mr Turaga’s] incarceration and detention and lack of knowledge

17    Submissions are also made as to the absence of procedural fairness and natural justice. It would follow that those submissions would succeed if the primary submission about the miscalculation succeeded because the Tribunal did not consider any other matters. However, if the primary argument fails, those arguments must also fall away. The other matters of which complaint is raised are as follows:

•    The Tribunal denied the importance of a primary consideration namely the Australian international obligations for the rights of a child

•    The Tribunal denied [Mr Turaga’s] children their basic human rights according to section 46MB of the Australian Human Rights Commission Act 1986

•    The Tribunal did not take into consideration [Mr Turaga’s] circumstances being incarcerated

•    The Tribunal ignore [sic] the interference by [Minister] in [Mr Turaga’s] family

18    On the primary point about the miscalculation of time, Mr Turaga’s submissions are as follows (reference numbers in margin omitted):

14.    The Miscalculation of the time limit required by the Administrative Appeals Tribunal:

w)    [Mr Turaga] recived [sic] the notice of cancellation of his visa on 19th of March 20l0 which it was Friday or the end of the working week , and automatically the requirement of 9 days should started [sic] on monday [sic] the 22nd of March 2010.

x)    The Tribunal as required by law did not give [Mr Turaga] the opportunity to explain the delays in sending the application to the [Tribunal].

y)    The Tribunal erred in laws by dismissing [Mr Turaga’s] application for review based on section 500 6(B), as [Mr Turaga] contend [sic] that he was denied "natural justice" by not being afforded an opportunity to respond to evidence which was given to the Tribunal by the Department.

z)    Also in the miscalculation of the 9 days required by law the Tribunal had fall [sic] into Jursdictional [sic] error as it should started [sic] on Monday the 22nd of March, 2010 instead of friday [sic] the 19th of March , 2010.

aa)    [Mr Turaga] contend [sic] the the [sic] [Tribunal] denied him "procedural fairness" by not alowed [sic] an opportunity to give the [Tribunal] an adequate explanation concerning the delay of the application.

bb)    It's in [Mr Turaga’s] submission that the Triunal's [sic] decision was affected by jurisdictional error for the reason that it failed to afford procedural fairness to [Mr Turaga].

cc)    There is another Jurisdictional error by the Tribunal is that it failed properly to explain procedures to [Mr Turaga] who was self represented.

dd)    For the previous reasons the applicant submit [sic] the the [sic] application of extension of time and the appeal from the [Tribunal] decision be allowed. In "kaur v Minister for Immigration and Border Protection" [2014] FCCA 1445

CONSIDERATION

19    There is no doubt that Mr Turaga was actually informed as to his appeal rights. They were set out in the Tribunal’s letter to him of 12 April 2010 and advised him clearly that he could appeal the Tribunal’s decision at the Federal Court within a 28 day period after he received a copy of the decision.

20    The delay is extreme. Mr Turaga is, effectively, seeking extension of time of more than six years from the Tribunal’s decision within which to bring his appeal. Although there is no evidence on the precise circumstances of Mr Turaga in that period, it is clear from what he has said that the combination of incarceration following some criminal conviction (which satisfies the requirements of the Migration Act) and detention in immigration detention have consumed most of that time. However, this does not mean an appeal could not be lodged years earlier than it was. There is no explanation for some sudden realisation as to the entitlement to appeal, and even if there was, the excessive period of time would make it an exceptional case if leave were granted. There are some cases where the amount of time involved is so excessive, without adequate explanation, that that alone will be sufficient to preclude an extension of time being granted, even if there are arguable grounds of appeal. But as will be seen, in this instance, the appeal grounds are simply not arguable. I will come to the grounds shortly. As noted by McHugh J in Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 (at [13]-[16]) (footnotes omitted):

[13]    In Gallo v Dawson, I said that the grant of an extension of time under O60 r6 is not automatic. This is as true of an application for constitutional relief under s75(v) as it is in respect of an appeal. I also said that, when the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. A similar inquiry must be made when the application is for an extension of time in which to commence s75(v) proceedings to quash an act, decision or judgment. A "case would need to be exceptional" before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration.

[14]    In this case, the Full Bench gave its orders on 19 February 1999 and delivered its reasons for the decision on 16 April 1999. The applicant did not file his notice of motion in this Court until 21 July 2000. Assuming that the time limits in r17 and r30 of O55 of the High Court Rules apply when constitutional relief is sought against the AIRC and that his delay is reasonably explained - which I very much doubt in this case - I would not grant the applicant an extension of time. For the reasons that I give below, the applicant has not been able to advance even an arguable case of jurisdictional error by the Full Bench.

[15]    An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.

[16]    Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.

(emphasis added)

21    McHugh J had adopted a similar course in earlier proceedings in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (at 553-554) where his Honour said that (footnote omitted):

A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is “to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced”. But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

22    In the present instance, the period for compliance or the limitation period stipulated by the legislature in order to strike a balance between the competing interests of a prospective appellant and a prospective respondent is 28 days. Where an applicant has delayed in commencing proceedings for some six years, it would require an extraordinary or exceptional case before an extension of time should be granted. I accept the Minister’s submission that such periods of limitation do not exist only to bar actions that would fail on the merits in any event. If an ‘arguable’ case is sufficient to outweigh a very lengthy delay, then limitation periods are deprived of any meaningful effect. They would become simply an additional bar to cases that would fail regardless of the limitation time. As such, the time limits would do nothing more than produce additional but ultimately pointless legal arguments, the only effect of which would be to increase costs. There is no doubt, as observed by McHugh J in Brisbane South Regional Health Authority, a limitation period or a time limit may operate so that a good cause of action is defeated. The government, as well as citizens, is entitled to have certainty and finality in dispute resolution. Granting an extension of time after six years, other than in a most extraordinary case would completely defeat that objective. Nonetheless, in such an application, as well as any other application for extension of time, the usual considerations apply. It is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for parties if an extension of time is to be granted or refused: Gallo v Dawson (1990) 93 ALR 479. But generally speaking, the longer the delay, the more persuasive the explanation needs to be: see also Tran v Minister for Immigration and Border Protection [2014] FCA 533 per Wigney J (at [38]).

23    In this case there is no persuasive explanation for a delay of six years.

24    In any event, when the prospects of success in the appeal are considered, there is no doubt that the Tribunal’s evaluation of the time period was correct. The Tribunal was also correct to say that it does not have jurisdiction to deal with Mr Turaga’s application for review in circumstances where it was lodged out of time.

25    The short point is that Mr Turaga has excluded the weekends in the computation of time. This is not the correct approach, except with one exception. Mr Turaga was notified of the delegate’s decision to cancel his Partner visa on 19 March 2010 (this is common ground). For the following reasons any application for review of the delegate’s decision to cancel the visa had to be lodged with the Tribunal by Monday, 29 March 2010. There is no provision in the Migration Act for the Tribunal to grant any extension of that strict nine day time limit. Nine days from 19 March 2010 fell on 28 March 2010, which was a Sunday. The effect of s 36(2) of the Acts Interpretation Act 1901 (Cth) is that if an act is required to be carried out on a weekend, it is to be treated as being required to be carried out on the next business day, which in this instance was Monday, 29 March 2010. That was the last day for filing the application for review. It was not in fact filed until 31 March 2010. Therefore, the Tribunal had no jurisdiction. It is clear under the Acts Interpretation Act that the nine days is nine actual calendar days (with the exception I have identified in s 36(2)), not nine business days as Mr Turaga appears to contend. Whether this was to do with the delay in the prison mailing system or some other reason is a topic on which there was no evidence whatsoever or any argument. The time period was not wrongly computed by the Tribunal. The consequences of that were correctly identified by the Tribunal.

26    It may seem somewhat curious that while the Migration Act provides for this Court and the Federal Circuit Court of Australia to extend time in relation to filing (which is exactly what this application is at present) there is no such power in the Tribunal to extend time. The consequence is that some time limits for bringing applications in the Tribunal (of various kinds, depending on the application) cannot be enlarged by the Tribunal. The consequence of this is that if a person fails to file within time for whatever reason, including reasons that did not include the person’s fault, he or she is left only with either judicial review of the delegate’s decision (as distinct from the Tribunal’s decision) or, in the present instance, to seek the exercise of the Minister’s non-compellable powers to reconsider the decision. But the Tribunal was right in concluding there it simply had no power to extend the statutory period.

CONCLUSION

27    For those reasons, the Tribunal was correct and the application for an extension of time will not be permitted. It follows that the application must be dismissed.

Associate:

Dated:    3 February 2017