Re Peter Lawrence Manoher (Also Known As Peter Lawrence Mano) v Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 199 (15 May 1991)

FEDERAL COURT OF AUSTRALIA

Re: PETER LAWRENCE MANOHER (also known as PETER LAWRENCE MANO)
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G35 of 1991
FED No. 280
Administrative Law

COURT

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

CATCHWORDS

Administrative Law - application for extension of time sought for lodging application for review - reasons for time limit - considerations relevant to application for extension of time.

Administrative Decisions (Judical Review) Act 1977 ss.11, 15; sub- ss.11(3), 11(4), 11(5); paras.11(1)(c), 11(3)(a)

Judiciary Act 1903 s.39B

Migration Act 1958 ss.89, 92, 93

Barrett v. Minister of State for Immigration and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129

Chumbairux v. Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480

Duff v. Freijah [1982] FCA 159; (1982) 43 ALR 479

Hickey v. Australian Telecommunications Commission (1983) 47 ALR 51 7

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

Lucic v. Nolan (1982) 45 ALR 411

Wedesweiller v. Cole [1983] FCA 94; (1983) 47 ALR 528

HEARING

PERTH
15:5:1991

Counsel for the Applicant: Mr D.E. Sigler

Solicitors for the Applicant: Robinson Cox

Counsel for the Respondent: Ms J. Adamson

Solicitor for the Respondent: Australian Government Solicitor

ORDER

The time within which the applicant may lodge its application for review of decisions of the respondent's delegate be extended to 16 April 1991.

The costs be in the cause of the respondent.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an application under para.11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") for an order allowing further time than that prescribed by the sub-section within which the applicant may lodge an application for orders to review decisions of the respondent's delegate made under the Migration Act 1958 ("the Act").

2. The relevant facts are set out in the reasons delivered on 10 May 1991 in respect of an application by the applicant for an order under s.15 of the ADJR Act suspending the operation of one of those decisions, namely a direction that the applicant be held in custody.

3. The decision signified by the taking of the applicant into custody was effected on 14 September 1990. It does not appear that the terms of that decision were recorded in writing and furnished to the applicant.

4. The decision refusing a grant to the applicant of a border visa was made on 21 September 1990. It was not contested that a "report" in writing setting out the terms of the decision was delivered to the applicant in custody on, or about, 26 September 1990. Whether the document met the terms of para.11(3)(a) of the ADJR Act may be debatable unless it is accepted that the document set out the findings on material questions of fact and sufficiently referred to the evidence or other material on which those findings were based. If the document was not one which caused the prescribed period to run pursuant to sub-s.11(3), no further order would be required from the Court to allow the application to proceed although, pursuant to sub-ss.11(4) and 11(5) of the ADJR Act, if the Court is of the opinion that the application was not made within a reasonable time it may refuse to entertain the application.

5. It was not argued that the period for filing the application was other than that prescribed by para.11(3)(a) in which event an application should have been lodged on or before 26 October 1990.

6. The respondent submitted that the applicant should not be allowed further time than the prescribed period in which to lodge his application. It was contended that:

a) a period of delay of six months was too long;
b) the applicant had been able to instruct solicitors in
that time without taking any steps to lodge an
application; and
c) there was an onus on the applicant to show why the time
should be extended.

The respondent referred the Court to Lucic v. Nolan (1982) 45 ALR 411 and Hickey v. Australian Telecommunications Commission (1983) 47 ALR 517.

7. For his part, the applicant submitted that although he had instructed solicitors to provide advice on why he was being held in custody and refused entry to Australia and what he could do about it, he had not received that advice before he instructed his present solicitors in March 1991. Upon receiving instructions from those solicitors as to his rights he gave prompt instructions for the lodgment of this application which was effected on 16 April 1991.

8. The appropriate principles which guide a Court in such an application have been discussed in Hunter Valley Developments Pty. Ltd. v. Cohen [1984] FCA 176; (1984) 3 FCR 344.

9. Although there is no formal onus to be satisfied by an applicant under para.11(1)(c), the greater the period of delay the higher the Court's expectation of an explanation.

10. However, the discretion vested in the Court by s.11 to allow a further time than a prescribed period is not limited. An indication of some of the matters that may be considered may be found in sub-ss.11(4) and 11(5) where a Court may refuse to entertain an application if it is not made within a reasonable time after a decision was made, having regard to when the applicant became aware of the decision and of the usual period prescribed for the making of an application for review.

11. Although there may be some cases in which the delay of a solicitor may be visited upon an applicant (see Duff v. Freijah [1982] FCA 159; (1982) 43 ALR 479), this is not one of them.

12. I accept that the applicant was unaware of the expiration of any prescribed period for lodging an application for judicial review and that he acted promptly once his rights were explained to him.

13. As stated by the Full Court in Barrett v. Minister of State for Immigration and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129 it is not a requirement that the prospects of success of an application be assessed when deciding whether to allow further time for the lodging of an application but it may be proper to do so in appropriate cases.

14. In the present case, I am satisfied that the applicant has arguments to raise in respect of each decision that will warrant the Court's attention without unnecessarily employing its time.

15. Although the delay of six months is long, it is not so inordinate as to indicate that the applicant has not been concerned with timely review. One of the reasons for the prescribed period in s.11 is to provide some protection against interference with the efficiency of administration likely to befall administrators and departmental officers if the right of review provided by the ADJR Act were able to be used at will by dissatisfied citizens in an uncontrolled manner.

16. In the present case, the respondent can claim no greater prejudice than the degree of interference and diversion of resources that attends any application for review of an administrative decision.

17. Other factors I consider to be important are as follows. First, the decision relating to the taking of the applicant into custody is a decision of a continuing nature in that it involves a continuing decision not to release the applicant from custody. Unlike the provisions in s.92 of the Act relating to the arrest of an illegal entrant, or s.93 relating to the arrest of a deportee which provide for appropriate controls in respect of continued custody of an arrested person, s.89 has no such provision. Prior to the lodgment of this application, the applicant has had no opportunity to have the continuation of his custody subject to the consideration of an independent authority.

18. Secondly, the application is not limited to a claim for relief under the ADJR Act. It also combines an application for relief under s.39B of the Judiciary Act 1903, an application that is not subject to lodgment within any prescribed period of time.

19. In addition, the applicant has given the respondent no reason to believe that the applicant has accepted the decisions made on the respondent's behalf and one way or another there has been cause for the respondent to anticipate that the applicant would seek to have the decisions reviewed. It is also a relevant consideration that the applicant has been in custody at all material times and denied the degree of access to advice in the conduct of his affairs that would be available to an ordinary citizen.

20. I am satisfied that the applicant has given a satisfactory explanation for the delay in lodging the application and that the time within which the application may be lodged should be extended to 16 April 1991. (See Chumbairux v. Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480 at p 490; Wedesweiller v. Cole [1983] FCA 94; (1983) 47 ALR 528.)

21. The costs of the application are to be the costs in the cause of the respondent.