Re James Boyd Mcphee; Susan Boyd Hill; Tamara Louise Hill; Scott James Hill and Robert Geoffrey Hill v the Minister of Immigration, Local Government and Ethnic Affairs [1988] FCA 219 (28 June 1988)

FEDERAL COURT OF AUSTRALIA

Re: JAMES BOYD MCPHEE; SUSAN BOYD HILL; TAMARA LOUISE HILL; SCOTT JAMES HILL
and ROBERT GEOFFREY HILL
And: THE MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. WAG 72 of 1988
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J(1).

CATCHWORDS

Administrative law - judicial review - extension of time - migration - deportation - refusal of temporary entry permit - review of decisions over 2 year period - delay - lack of finance - ignorance - criteria for extension - whether decision-maker led to believe decision not disputed - prejudice - merits - fairness - utility of final relief - motion for extension dismissed.

Administrative Decisions (Judicial Review) Act 1977 s.15, s.11

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

HEARING

PERTH
28:6:1988

ORDER

A. On the applicants' motion filed 24 June 1988:-

The motion be dismissed insofar as it relates to the
extension of time for reviewing decisions 1, 2 and 3
referred to in the proposed amended application.

The applicants have leave to amend the application by
the deletion of references to decisions 1, 2 and 3 and
any grounds relating thereto.

The applicants file their amended application in
accordance with these orders on or before 1 July 1988.

The applicants pay the respondent's costs of this motion
in any event.

B. On the respondent's motion dated 17 June 1988:-

The motion be dismissed.

The applicants pay the costs of the motion in any event.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

DECISION

James Boyd McPhee is a citizen of the United Kingdom, who was born in that country on 5 September 1955. In January 1963, with his parents, three brothers and his older sister, who is the second applicant in these proceedings, McPhee migrated to Australia. Initially the family lived in Melbourne but in 1967 they came to Perth. In 1971 they returned to the United Kingdom leaving behind his sister and one older brother. According to Mcphee, he left home shortly after their return to the U.K. He saysd he hereafter made a number of unsuccessful applications for the appropriate permits to enter and reside in Australia. These applications are said to have been in May 1971, July 1972, February 1973, October 1975, May 1977, January 1979, October 1981, August 1983, February 1983, February 1984 and February 1985.

2. In or about July 1985 he applied to the Australian Consulate in Edinburgh for a visitor's visa and this was issued, although he admits that he lied about previous attempts to migrate when making that application. On 10 August 1985 he entered Australia as a visitor and was granted a temporary entry permit authorising a stay here until 5 January 1986. However, between 25 October 1985 and 7 November 1985, he reported to the Department of Immigration and Ethnic Affairs that he had lost his passport and return ticket. On 7 January 1986, acting on departmental advice, he logded an application for an extension of his stay. On 6 March this was refused, but a 14 day extension was granted on 12 March to enable him to raise the money to leave voluntarily. It is said by th Department that he made no apparent attempt to arrange departure and on 1 May an order was made that he be deported from Australia. He was taken into custody on 8 May and was deported back to the U.K. on 17 May 1986. From his arrival in that country he staged a demonstration lasting some seven months, including a hunger strike outside Australia House in London in which he protested about not being allowed to return to Australia to live with my sister and her children.

3. The departmental attitude to his return, which is said to have been conveyed to him during and beyond this time, was that he would not be considered until 5 years had elapsed from his deportation. In correspondence with the Commonwealth Ombudsman and the Regional Director of the Department in London, McPhee complained that he had been treated unjustly.

4. Sometime thereafter, and without the knowledge of the Department of Immigration and Ethnic Affairs, the applicant travelled to and entered Australia. On 19 November 1987 he appeared on a television current affairs programme and there admitted to illegal entry to Australia.

5. On 17 May 1988 Mr David Jolly, a delegate of the respondent, decided to refuse to Mr McPhee the grant of a temporary entry permit and further decided to order his deportation.

6. On 2 June 1988 McPhee, his sister, Mrs Hill, and Mrs Hill's three children, instituted proceedings under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") to reveiw the decision of 17 May together with the other decisions made between 1971 and 1988.

7. On 3 June 1988, Lee J. ordered, pursuant to s.15 of the ADJR Act, that the operation of the decision to deport be suspended until further order. Leave was given to amend the application and directions were made relating to the provision of reasons for decision and the filing of affidavits.

8. In the amended application filed 13 June, McPhee sought reveiw of the following decisions:-

1. Decisions made on the 6th of March, 1986 to refuse
the first applicant extensions of stay applied for
in October 1985 and on the 4th of January, 1986
whilst he was the holder of a valid T.E.P.;

2. Decision made on the 1st of May, 1986 to deport the
first applicant;

3. Decisions made from 1971 to 1985 to refuse to grant
the first applicant a migrant entry visa and
permanent residence. (Reference was then made in
the form to the various applications between 1971
and 1985 which have already been mentioned in these
reasons.)

4. Decisions made on the 17th of May, 1988 to:-

(i) refuse the grant of a further T.E.P.;
(ii) refuse the grant of a resident status permit
pursuant to Section 6A(1)(e) of the Migration
Act 1958;

(iii)order the deportation of the first applicant.

9. The amended application drew a response by way of a notice of motion that paras. 1, 2 and 3 be struck out as disclosing no reasonable basis for the application. This was filed on 17 June 1988 contemporaneously with a notice of objection to competency so far as the decisions 1, 2 and 3 were concerned. there were two bases for this attack. Some of the decisions were said to have been made before the commencement of the ADJR Act on 1 October 1980. In any event, it was said that the application to reveiw the other decisions, apart from decision 4, was not lodged within the precribed period as required by s.11(1)(c) and defined by s.11(3) of the Act.

10. The applicants filed a motion on their own account on 24 June 1988 seeking leave to further amend the application to review and to extend time to review the various decisions set out therein.

11. In the proposed amended application for an order of reveiw, the challenge to the decisions said to have been made betwwen may 1971 and January 1979 inclusive was abandoned, these decisions all having been taken prior to the coming into effect of the ADJR Act. The question then remained whether time should be extended in respect of the other decisions under challenge. In the event, in the course of argument counsel for the applicants virtually abandoned his attempt to seek review of the balance of the decisions in category 3, being those made between October 1981 and 1985 refusing to grant McPhee a "migrant entry visa and permanent residence". If they had not been abandoned, I would certainly not have been disposed to extend time to enable the application to proceed in respect of them. Counsel was unable to point to any useful purpose that would have been served by so doing, nor any real justification for the time that has elapsed between the making of those decisions and the application for their reveiw.

12. The motion to extend time therefore reduces to a motion to extend time to allow the application to proceed in respect of the decisions in categories 1 and 2. Those decisions were the refusal on 6 March 1986 to allow the McPhee to extend his stay at that time and the decision on 1 May to deport him to the United Kingdom.

Statutory Framework

13. The requirement for the applicants to seek an extension rises by reason of the provisions of s.11 of the ADJR Act the relevant parts, provides:-

11.1(1) An application to the Court for an order of Reveiw -

(a) shall be made in such manner as is prescribed by
Rules of Court;

(b) shall set out the grounds of the application; and
(c) shall be lodged with a Registry of the Court and,
in the case of an application in relation to a
decision that has been made and the terms of
which were recorded in writing and set out in a
document that was furnished to the applicant,
including such a decision that a person purported
to make after the expiration of the period within
which it was required to be made, shall be so
lodged within the prescribed period or within such
further time as the Court (whether before or after
the expiration of the prescribed period) allows.

.

.

.

(3) The prescribed period for the purposes of paragraph (1)(c) is the

period commencing on the day on which the decision is made and ending on the twenty-eighth day after -

(a) if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or

(b) in a case to which paragraph (a) does not apply -

(i) if a statement in writing setting out those
findings, referring to that evidence or other
material and giving those reasons is furnished
to the applicant otherwise than in pursuance
of a request under sub-section 13(1) not later
than the twenty-eighth day after the day on
which a document setting out the terms of the
decision is furnished to the applicant - the
day on which the statement is so furnished;

(ii)if the applicant, in accordance with
sub-section 13(1), requests the person who
made the decision to furnish a statement as
mentioned in that sub-section - the day on
which the statement is furnished, the
applicant is notified in accordance with
sub-section 13(3) of the opinion that the
applicant was not entitled to make the
request, the Court makes an order under
sub-section 13(4A) declaring that the
applicant was not entitled to make the request
or the applicant is notified in accordance
with sub-section 13A(3) or 14(3) that the
statement will not be furnished; or

(iii) in any other case - the day on which a
document setting out the terms of the decision
is furnished to the applicant."

In appears from the papers before the Court that notification of
decision 1, refusing the grant of a further temporary entry permit, was sent to Mr McPhee on 10 March 1986 in a letter signed by the then Regional Director for the Department, Mr N.A. McCann.

14. As appears from a letter written on Mr McPhee's behalf to the Regional Director on 14 May 1986 he had, shortly prior to that date, been served with notice of the deportation order. On this basis it would appear that the application for review of decisions 1 and 2 is some two years out of time.

The Reasons for Delay

15. In an affidavit filed in support of his application to extend time, McPhee explains the reasons for delay in relation to decisions 1 and 2. He says that on 16 May 1986 an officer of the Legal Aid Commission advised that he had no grounds to appeal and there was insufficient time to mount a case as he was flying out the following day. When he arrived back in London he says he commenced his protest outside the Australian High Commission on 25 May 1986 and kept that up for seven months, until 11 December 1986 when he was forcibly removed by police at the High Commissioner's request. He claims that "all my copies of correspondence, documents and clothing were seized by the police and never returned". McPhee says he did not have the money to employ Australian solicitors to take up the case, although one firm of Sydney solicitors did offer to investigate it for $1,500. He did not, however, have that kind of money. He says that between 1980 and July 1987 he was in regular correspondence with Australian immigration officers in Perth, London, Sweden, Denmark and Holland. Throughout this period, he says, the respondent was fully aware of his deeply felt sense of grievance over the adverse decisions refusing all attempts to be permitted re-entry into Australia. He claims that the first time he saw the reasons for refusal dated 1 May 1986 was on 12 January 1988, but that he was pre-occupied with pressing his change of status application filed in November 1987 which, if successful, would have resulted in him becoming a permanent resident of Australia.

16. In substance, therefore, his reasons for his delay in o review the two decisions taken in 1986 are ignorance of finance.

Criteria for Extension of Time

17. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, Wilcox J. pointed out at p.348 that s.11 does not place any onus of proof upon an applicant for extension, and special circumstances need not be shown, but that the Court will not grant the application unless positively satisfied that it is proper to do so. As his Honour observed, the "prescribed period" of twenty-eight days is not to be ignored, and, indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained:-

It is a pre-condition to the exercise of discretion in
his favour that the applicant for extension show an
"acceptable explanation of the delay" and that it is
"fair and equitable in the circumstances" to extend
time".

It is relevant to take into account whether the applicant for extension of time has, by non-curial means, continued to make the decision-maker aware that he contests the finality of the decision and has not "rested on his rights". Prejudice to the parties and consideration of the merits of the substantial application can also properly be taken into account. His Honour also observed that considerations of fairness as between the applicants and other persons otherwise in a similar position are relevant to the manner of exercise in the Court's discretion.

18. In my opinion, it is also proper to take into account the utility of the review sought. This may, of course, be subsumed in a consideration of the merits of the application having regard to the fact that the grant of relief is discretionary and that utility may be a relevant factor in determining the exercise of that discretion.

19. The only decisions with any presently operative legal effect upon the applicant are the decisions taken in May of this year to refuse the grant of a temporary entry permit and to order his deportation. To the extent that some of the history, including decisions previously taken, has played a role in coming to that current decision there may be some scope for examining them to the extent that such examination would bear upon the grounds of review set out in the amended application. In these circumstances however, the applicants' success in this matter will he determined by whether or not they succeed in obtaining an order for the review of the decisions made in May of this year.

20. In my opinion, in the circumstances, the court should not exercise its discretion to extend time, and the applicants' motion to extend time will be dismissed to that extent. Subject to that finding, I will give the applicants leave to amend their application by the deletion of references to all but decision 4 and grounds relevant to that decision. It seems to me that the appropriate course of action with respect to the respondent's motion is to dismiss it but to allow the respondent the costs of that motion and indeed, the costs also of the applicants' motion.

21. The orders which I propose are as follows:-

A. On the applicants' motion filed 24 June 1988:-

1. The motion be dismissed insofar as it relates to the
extension of time for reviewing decisions 1, 2 and 3
referred to in the proposed amended application.

2. The applicants have leave to amend the application by
the deletion of references to decisions 1, 2 and 3 and
any grounds relating thereto.

3. The applicants file their amended application in
accordance with these orders on or before 1 July 1988.

4. The applicants pay the respondent's costs of this motion
in any event.

B. On the respondent's motion dated 17 June 1988:-

1. The motion be dismissed.

2. The applicants pay the costs of the motion in any event.