Re Graham Bruce Mitchell v Minister of Immigration and Ethnic Affairs [1983] FCA 239 (30 September 1983)

FEDERAL COURT OF AUSTRALIA

Re: GRAHAM BRUCE MITCHELL
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WAG 45 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

ADMINISTRATIVE LAW - application for extension of time to file notice of appeal from decision of Administrative Appeals Tribunal - whether reasonable explanation or excuse for failure to file notice of appeal within time - whether appeal on question of law

Administrative Appeals Tribunal Act 1975, ss. 44(1), 44(2A)

HEARING

PERTH
30:9:1983

ORDER

The Court orders that the application be dismissed.

DECISION

This is 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 delivered 29 July 1983, affirming the decision of the respondent that the applicant be deported from Australia.

Section 44(1) of the Administrative Appeals Tribunal Act 1975 enables a party to a proceeding before the Tribunal to appeal to the Federal Court "on a question of Law" from the Tribunal's decision. Sub-section (2A) requires an appeal to be instituted not later than the 28th day after the day on which a document setting out the terms of the decision is furnished to the person or within such further time as the Court allows.

At the time of the decision the applicant was in employment and he remained so until 24 September when he was taken into custody for the purposes of deportation to New Zealand.

The application for an extension of time was supported by an affidavit by the applicant's solicitor in which the only reason offered for the failure to lodge notice of appeal within time was the following sentence:
"I am also instructed that since the 29th day of July 1983 the applicant herein has been attempting to organize finances for the purpose of instituting an appeal against the said decision made and delivered on the 29th day of July 1983 of His Honour Mr. Justice J.D. Davies".

When the matter came before me yesterday morning I expressed my dissatisfaction that the affidavit deposed neither to facts within the personal knowledge of the deponent nor to facts of which he had been informed and in which he expressed a belief.

I therefore adjourned the matter until yesterday afternoon to allow the applicant an opportunity to give oral evidence.

The testimony of the applicant was that following the decision his solicitor rang him with the result and that he (the applicant) told the solicitor he wished to appeal. The solicitor then sent the applicant a copy of the decision asking him to note those matters of which he complained. The applicant did so and by mid August or thereabouts had returned the decision with notes to his solicitor. The applicant said he was not aware of any time limit within which to appeal and assumed that his solicitor would take care of the matter.

The affidavit sworn by the applicant's solicitor might well be understood to mean that no appeal was instituted because the applicant did not provide the necessary funds. This was not the applicant's account which, to some extent, placed the blame at the door of his solicitor.

But even the applicant's evidence was vague. He must have been aware that some time limit was involved and even if he thought the matter was being attended to by his solicitor, he seems to have shown little interest once he returned the papers. The explanation might well be that suggested by his counsel yesterday morning, that he was hoping that the respondent might revoke his decision.

I approach the application on the basis that the applicant "has to satisfy the Court that justice requires that that default of his shall be overlooked, and he must satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules" (Cullen C.J. in Morres v. Papuan Rubber and Trading Co. Ltd. (1914) 14 SR(NSW) 141 at p.144, approved in Bishop v. The Queen [1982] FCA 33; (1982) 58 FLR 233 at p.235).

In the rather confusing and conflicting state of the evidence I am not satisfied that there is a reasonable explanation or excuse for the failure to file a notice of appeal within time.

Furthermore, in my view, the proposed notice of appeal does not bring the applicant within s.44(1) of the Act, in that he is not seeking to appeal on a question of law.

The notice of appeal formulates as the question of law to be raised "That the Learned Judge was wrong in law in deciding to exercise his discretion to affirm the said decision to deport the applicant . . .".

The question of law is amplified in a number of grounds, each of which alleges that the Tribunal "was wrong in law". But an examination of those grounds shows that they do no more than complain that the Tribunal failed to give weight to certain matters. In so far as conclusions are attacked, they are quite peripheral to the decision.

The one ground, ground (b), which may on its face be said to involve a question of law is, as counsel for the applicant conceded, misconceived. It attacks a finding that the applicant was not present in Australia for 5 years before the commission of the offence giving rise to the deportation order, "in that the evidence was to the contrary". But as counsel acknowledged, the evidence entirely supported that finding.

In referring to the question of law said to be raised by the appeal and to the grounds of appeal, I do not in any way usurp the function of an appellate court. I merely seek to enquire whether there is in truth an appeal on a question of law. For if there is none, it strengthens my view that the application should not succeed. I am satisfied that even on the broadest view (see the discussion in Tabaq v. Minister for Immigration and Ethnic Affairs [1982] FCA 276; (1982) 45 ALR 705) the appeal envisaged is not on a question of law and, not being persuaded of a reasonable explanation or excuse for the failure to comply with s.44(2A) of the Act, the application must be dismissed.