"VAS" and Minister for Immigration and Multicultural and Indigeno us Affairs [2003] AATA 939 (18 September 2003)

Last Updated: 23 September 2003

CATCHWORDS - JURISDICTION - immigration - whether visa applicant may seek review of the decision refusing to grant him a protection visa on basis of Article 1F of Refugees Convention - whether entitled to seek review under Part 7 if refusal made on different ground - whether provisions of Part 7 substantive requirements - whether Tribunal may extend time under Administrative Appeals Tribunal Act 1975 - Tribunal has no jurisdiction.

EXTENSION OF TIME - if Tribunal has jurisdiction to extend time, whether time should be extended - extension refused.

Administrative Appeals Tribunal Act 1975 ss. 25, 27 and 29

Administrative Decisions (Judicial Review) Act 1977 s. 11

Migration Act 1958 ss. 412 and 500

Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150

Arquita v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 321

Comcare v A'Hearn (1993) 119 ALR 85

Daher v Minister for Immigration and Ethnic Affairs (1996) 141 ALR 311

Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556

Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1989) 58 ALR 305

NACG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 173

Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173

Project Blue Sky Inc and Others v Australian Broadcasting Commission [1998] HCA 28, 194 CLR 355

VQAR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 899

Assi and Minister for Immigration and Multicultural and Indigenous Affairs (2003) 36 AAR 432

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

Hoare v Deputy Commissioner of Taxation of the Commonwealth of Australia (1987) 14 ALD 476

Re Bonavia and Secretary, Department of Social Security (1985) 9 ALD 97

Re Bogaards and Commonwealth of Australia (1987) 13 ALD 578

Re Bell and Australian Telecommunications Commission (1983) 5 ALN N186

Re Pepper-Clayton and Australian Telecommunications (1985) 7ALD 508

NADB v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 71 ALD 41

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

DECISION AND REASONS FOR DECISION [2003] AATA 939

ADMINISTRATIVE APPEALS TRIBUNAL )

) V2003/902

GENERAL ADMINISTRATIVE DIVISION )

Re "VAS"

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)

Date: 18 September, 2003

Place: Melbourne

Decision: The Tribunal decides that:

1. it does not have jurisdiction to consider the applicant's application for an extension of time; and

2. if it did have jurisdiction, it would refuse his application.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 20 August, 2003, the applicant, to whom I will refer as VAS, applied for an extension of the time within which he might lodge an application for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") dated 31 July, 2001. That decision was to refuse to grant VAS a Protection Visa (Class XA) on the basis that VAS is not a person to whom Australia has protection obligations under the Status of Refugees done at Geneva on 28 July, 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January, 1967 ("Refugees Convention"). The delegate relied on Article 1F of the Refugees Convention.

2. VAS, who is in detention, was unable to attend the hearing through ill health and so was unable to give evidence in support of his application. He was represented by Mr Kissane of counsel and the Minister by Dr Donaghue of counsel. Regard was had to the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") ("T documents"), affidavits that had been filed in proceedings No. V562/2003 in the Federal Court in July and August, 2003 (Ms Viviana Rosa Barrio, Ms Madeleine Aikenhead, VAS and Mr Joseph Acquaro, VAS's solicitor), an earlier decision of the Tribunal in relation to a previous application made by VAS and a letter dated 2 August, 2002 from Mr Acquaro to the Minister's solicitor, Ms Haigh. No oral evidence was given.

THE ISSUES

3. There were three issues in this case. The first was whether VAS may make an application at all for issues relating to the Tribunal's power to extend time only arise if he may do so. Resolution of that issue turns on whether VAS is a person who would be entitled to seek review of the decision under Part 7 of the Migration Act 1958 ("the Migration Act") if the decision had been made on another ground. If the Tribunal does have jurisdiction, the second issue is whether the time within which VAS may apply for review may be extended and, if so, the third issue is whether it should be extended.

BACKGROUND

4. There was no issue taken with the chronology of events presented on behalf of the Minister. I have based the findings in the following paragraphs on that chronology for the purposes of this application.

5. VAS was born on 10 January, 1961 and entered Australia on 21 October, 1989 on a tourist visa issued at an Australian Embassy. That visa expired on 21 April, 1990. On 26 August, 1990, he married an Australian citizen.

6. VAS was detained in 1996 as an unlawful non-citizen but, shortly after being released on a bond, lodged an application for a Spouse General Residence Visa. On 19 May, 1997, a delegate of the Minister decided that he was not of good character and, on 27 May, 1997, refused to grant him a visa under s. 501. On 20 June, 1997, VAS lodged an application in the Tribunal for review of that decision.

7. An application was made that Deputy President Forrest disqualify himself from hearing the application. On 24 August, 1998, he declined the application. An appeal from that decision was dismissed by Heerey J on 11 February, 2000. The substantive application was ultimately heard by the then Deputy President Blow who delivered his decision on 7 June, 2000. That decision was to set aside the decision.

8. On 24 July, 2000, the Department of Immigration and Multicultural and Indigenous Affairs ("Department") first notified VAS that the Minister was considering setting aside the Tribunal's decision and refusing his visa under s. 501A. On 18 October, 2000, VAS's then solicitors were notified that the Minister had made that decision and had refused his spouse visa. On 26 October, 2000, VAS lodged an application in the Federal Court to review that decision under s. 501A.. A month or so later, on 1 December, 2000, VAS instituted proceedings in the High Court to quash the Minister's decision of 19 May, 1997 refusing VAS's visa on character grounds and to review the Minister's decision of 18 October, 2000. A few days later, on 6 December, 2000, VAS sought an extension of time to appeal against Deputy President Blow's decision of 7 June, 2000. That application was refused on 9 February, 2001.

9. On 18 May, 2001, Marshall J dismissed the application relating to the Minister's decision dated 18 October, 2000 to refuse the spouse visa under s. 501A.. An appeal against Marshall J's judgement was lodged on 5 June, 2001.

10. On 7 June, 2001, VAS applied for a protection visa. At the time, he was in detention in the Maribyrnong Detention Centre ("MIDC"). A little later, on 15 June, 2001, he instituted proceedings in the Federal Court seeking release from MIDC. On 31 July, 2001, a decision was made rejecting his application on the ground that he was not a person to whom Australia has protection obligations under Article 1 F of the Refugees Convention. A copy of the decision was sent by facsimile to the MIDC on the same day. In a judgement delivered in VQAR v Minister for Immigration and Indigenous and Multicultural Affairs [2003] FCA 899, Heerey J found that VAS had been notified of the decision in accordance with s. 66(1) of the Migration Act and r. 2.16(1)(d) of the Migration Regulations.

11. The appeal against Marshall J's judgement in relation to the spouse visa was ultimately dismissed by the Full Court on 17 July, 2002. VAS lodged an application for special leave to apply to the High Court and did so on 1 August, 2002. On 20 June, 2003, the High Court refused the Special Leave application and VAS's earlier application to that court lodged on 1 December, 2000 to quash the Minister's decision of 19 May, 1997 refusing VAS's visa on character grounds and to review the Minister's decision of 18 October, 2000.

12. On 17 July, 2003, VAS was given notice of his removal from Australia by the Department and he lodged an application in the Federal Court to stay his removal. His application was based on the Minister's failure to notify him that his application for a Protection Visa had been refused and on the basis that he was waiting for the outcome of his request that the Minister reconsider his decision to refuse his spouse visa pursuant to s. 501A of the Migration Act. On 25 July, 2003, the Minister notified VAS's migration agent that the Minister did not have power to reconsider his decision. On 15 August, 2003, VAS sought review of that decision in the Federal Court.

13. Both the application to stay his removal, the application regarding the Minister's power of review and that regarding the service of the protection visa decision were heard by Heerey J, who dismissed them on 19 August, 2003. An appeal against his judgement in relation to the power of review was lodged on 20 August, 2003. That was the same day on which VAS applied to this Tribunal for an extension of time in which to lodge an application for review of the refusal of a protection visa.

14. On 11 September, 2003, VAS sought an extension of time within which to lodge an appeal against Heerey J's judgement regarding the service of the decision refusing the protection visa. On the following day, he lodged an appeal to the Full Federal Court from Heerey J's judgement dismissing his application to stay his removal.

CONSIDERATION

The general principles governing when may a person make an application to the Tribunal

15. Section 25 of the AAT Act is fundamental to any consideration of the Tribunal's jurisdiction to review a decision. It begins with the general statement that:

"An enactment may provide that applications may be made to the Tribunal:

(a) for review of decisions made in the exercise of powers conferred by that enactment." (s. 25(1)(a))

Section 25(4) provides the necessary corollary to this sub-section when it provides that the ".... Tribunal has power to review any decision in respect of which application is made to it under any enactment." The general powers of the Tribunal are found in other provisions of the AAT Act.

16. The remaining ten sub-sections of s. 25 go on to refine the general proposition made in s. 25(1) and to provide that an enactment may modify the operation of any particular provision of the AAT Act. Of particular interest in this case is s. 25(3) which provides:

"Where an enactment makes provision in accordance with subsection (1), that enactment:

(a) shall specify the person or persons to whose decisions the provision applies;

(b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and

(c) may specify conditions subject to which applications may be made."

17. Section 27(1) of the AAT Act provides that:

"Where this Act or any other enactment ... provides that an application may be made to the Tribunal for review of a decision, the application may be made by or on behalf of any person or persons ... whose interests are affected by the decision."

18. Although the words of s. 27 appear to entitle any person to make an application if his or her interests are affected by a decision their breadth is qualified by their opening words. Those words draw attention to the enactment providing that an application may be made for review of a decision. Only if that enactment so provides, may an application be made by a person whose interests are affected by the decision. Section 27 is, therefore, consistent with s. 25 in that both permit the Tribunal's power of review to be defined and circumscribed by the enactment making provision for that review. The effect of ss. 25 and 27 is that regard must be had to the terms of the enactment concerned (in this case the Migration Act) to decide whether or not the Tribunal has been given jurisdiction.

The general principles governing the time limits within which a person may apply for review under the AAT Act

19. Section 29 of the AAT Act sets out the manner in which an application may be made to the Tribunal. Among those requirements is a requirement that it be lodged within the time prescribed in s. 29. Section 29(7) provides that:

"The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section)."

An application for extension of time may be made even though the time has expired (s. 29(8)).

When may a person apply to the Tribunal for review of a decision under the Migration Act?

20. In this case, regard must be had to s. 500 of the Migration Act because that deals with review by the Tribunal. Section 500(1) provides that applications may be made to the Tribunal for review of three categories of decisions. It is qualified both by its own terms (in so far as it excludes decisions in relation to which a certificate under s. 55(2) applies) and by the remaining provisions of s. 500. Section 500 (1)(c) provides that applications may be made to the Tribunal for review of a decision to refuse to grant a protection visa, or to cancel a protection visa relying on, among others Article 1F of the Refugees Convention.

21. Section 500(3) narrows those who may make an application by providing that, in so far as it is relevant:

"A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1) ... (c) unless the person would be entitled to seek review of the decision under Part ... 7 if the decision had been made on another ground".

What is meant by the words "would be entitled to seek review of the decision" in s. 500(3)?

22. Section 500(3) is focused upon the person's entitlement. In the case of a decision such as the decision to refuse VAS a protection visa while relying on Article 1F, he or she is not entitled to make an application for review in the Tribunal unless he or she would be entitled to do so under Part 7 had the decision been made on another ground. The ordinary meanings of the word "entitle" include:

"... confer on (a person or thing) a rightful claim to something or a right to do ..." (The New Shorter Oxford English Dictionary, 1993)

"In its usual sense, to entitle is to give a right or legal title to. Schmidt v Gibbons, 101 Ariz. 222, 418 P.2d 378, 380. To qualify for; to furnish with proper grounds for seeking or claiming. ..." (Black's Law Dictionary, 6^th edition, 1990)

23. There seems to me to be nothing in s. 500(3) or in its context that leads to the conclusion that the word "entitle" should be given anything other than its ordinary meanings. Whether a person would be entitled to seek review of the decision under Part 7 is determined by reference to whether a person had a right to seek that review; whether he or she was qualified to seek review. This is consistent with the judgement of North J in Daher v Minister for Immigration and Ethnic Affairs (1996) 141 ALR 311 to the effect that "... s. 500(3) is concerned with standing ...". He reached that conclusion in the following passage:

"Mr Cavanough, who appeared as counsel for the Minister, accepted that the primary function of s. 500(3) was to define the requirements for standing to bring an application. But he contended that the purpose of s. 500(3) was not confined to specifying the requirements for standing, but extended to confine the nature of the decisions which could be the subject of applications to the AAT. I agree with counsel that s. 500(3) is concerned with standing. But the choice of the manner in which the requirements are stated is significant. The fact that the requirements are defined by reference to the requirement for an application for review by the RRT reflects a particular form of description which is consistent with s. 500(1)(c) being confined to decisions of the Minister. ..." (page 315)

By "standing", I understand North J to mean a person's right to take the step to initiate proceedings in the Tribunal. He distinguished that right from the identification of the decisions in relation to which that right could be exercised and that was a matter at the heart of that case.

24. In this case, the concern is not with the identification of the decisions that may be reviewed but with the issue of standing. The concern is with VAS's entitlement to make an application for review and his entitlement must be considered at the time that he seeks to make it. It cannot be considered by reference to the right that he would have had at the time that the decision was made. This follows from the opening words of s. 500(3) itself i.e. "A person is not entitled to make an application ..." (emphasis added). As I have said, his entitlement to make that application only arises if he "would be entitled to seek review of the decision under Part ... 7 if the decision had been made on another ground".. Although an assessment of what VAS's entitlement would be under Part 7 is necessarily a hypothetical exercise, the terms of s. 500(3) make it clear that the assessment must have regard to what "would be" VAS's present entitlement to seek review of the decision under Part 7. It is not to be carried out by reference to what "would have been" VAS's entitlement had the matter been considered at the date that the decision was made by the delegate.

25. Within s. 500(3) there is a contrast between the manner in which a person's entitlement under s. 500(1) is expressed and what would be his or her entitlement under Part 7. His or her entitlement to make an application under s. 500(1) is predicated upon what would be his or her entitlement to seek review of the decision under Part 7.. It is not predicated upon what would be his or her entitlement to make an application. The difference in language gives pause for thought as to whether Parliament intended to draw a distinction between the entitlement to apply for review and the entitlement to make an application. Such a distinction could lead to a conclusion that provisions relating to matters such as time limits relate to the making of an application and matters such as a person's being affected by the decision or a person's being in the country relate to the right to seek a review but do not extend to procedural matters. On reflection, I think that the difference is more semantic than real. In practical terms, a person may only seek review of a decision in the Refugee Review Tribunal ("RRT") under Part 7 or in the Tribunal under s. 500 by making an application.

Would VAS be entitled to seek review of the decision, if made on another ground, under Part 7?

26. Part 7 is concerned with review of decisions by the RRT. Section 411 sets out four categories of decision that are RRT-reviewable decisions. Among them, is a decision to refuse to grant a protection visa (s. 411(1)(c)). Section 412 is concerned with applications for review by the RRT. Its provisions fall into two categories: those who may make an application for review of an RRT-reviewable decision and how an application must be made. In so far as those who may make an application for review are concerned, only a person who is a non-citizen who is the subject of the primary decision (s. 412(2)) and who is physically present in the migration zone when the application is made (s. 412(3)) may do so. Neither ss. 412(2) nor 412(3) refers to "an application for review of an RRT-reviewable decision" as is found in s. 412(1) but it is clear from reading the section as a whole that the reference in those sub-sections to "an application for review" is simply a short hand means of referring to an application for review of an RRT-reviewable decision.

27. Section 412(1) is concerned with the manner in which an application for review must be made. It provides that it must:

"(a) be made in the approved form; and

(b) be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after the notification of the decision; and

(c) be accompanied by the prescribed fee (if any)."

For the purposes of s. 412(1)(b), regulations may be made specifying different periods of time in relation to different classes of RRT-reviewable decisions (s. 412(3)). There is no provision in Part 7 or any other provision of the Migration Act entitling the RRT to extend the time limits. This is underlined by the judgement of the Full Court of the Federal Court in NACG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 173 (Madgwick, Dowsett and Stone JJ).

28. Mr Kissane sought to distinguish the provisions of ss. 412(1) and (4) relating to time limits and those in ss. 412(2) and (3).. On the face of s. 412, there is no obvious basis for that distinction. The specification of who may make an application, and so seek review, and the specification of the procedural matters that define the manner in which an application may be made are both directed to delineating those who may apply. For all practical purposes, only those who come within the category of those who may apply and who follow the rules as to how to make an application are entitled to do so. In Assi and Minister for Immigration and Multicultural and Indigenous Affairs (2003) 36 AAR 432, I considered the distinction that had previously been made between mandatory and directory provisions and did so in the context of s. 500(3) of the Act.

29. That the distinction between mandatory and directory provisions is no longer a valid distinction to draw follows from the majority judgement of the High Court in Project Blue Sky Inc and Others v Australian Broadcasting Commission [1998] HCA 28, 194 CLR 355 (McHugh, Gummow, Kirby and Hayne JJ, Brennan CJ dissenting). Although dissenting, Brennan CJ summarised the current position when he said:

"... A provision may require the repository or some other person to do or to refrain from doing something (sometimes within a period prescribed by the statute) before the power is exercised but non-compliance with the provision does not invalidate a purported exercise of the power (Osborne v The Commonwealth (1911) 12 CLR 321 at 336-337; Buchanan v The Commonwealth (1913) 16 CLR 315 at 329): the provision does not condition the existence of the power (See, eg, Clayton v Heffron (1960) 105 CLR 214 at 246-248; Simpson v Attorney-General (NZ) [1955] NZLR 271; Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286; [1995] 1 All ER 367). Such a provision has often been called directory, in contradistinction to mandatory, because it simply directs the doing of a particular act (sometimes within a prescribed period) without invalidating an exercise of power when the act is not done or not done within the prescribed period. The description of provisions as either mandatory or directory provides no test by which the consequences of non-compliance can be determined; rather, the consequences must be determined before a provision can be described as either mandatory or directory." (page 374)

30. Brennan CJ had distinguished this type of provision from two other types of provision, which he compared in the following passage:

"A provision which directs the manner of the exercise of a power is quite different from a provision which prescribes an act or the occurrence of an event as a condition on the power - that is, a provision which denies the availability of the power unless the prescribed act is done or the prescribed event occurs. In one case, power is available for exercise by the repository but the power available is no wider than the direction as to the manner of its exercise permits; in the other case, no power is available for exercise by the repository unless the condition is satisfied (See, eg, Spicer v Holt [1977] AC 987). A provision which prescribes such a condition has traditionally been described as mandatory because non-compliance is attended with invalidity. A purported exercise of a power when a condition has not been satisfied is not a valid exercise of the power." (page 373)

This approach is consistent with that adopted by the majority (pages 390-391).

31. These principles were considered by Finkelstein J in Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 in the context of the provisions of s. 500(6C) of the Act. That section provides that, if a decision under s. 501 relates to a person in the migration zone, an application for review of a decision must be accompanied by, or by a copy of, the document notifying the person of the decision and one of the sets of documents given to him or her under s. 501G(2). Finkelstein J concluded that a failure to comply with s. 500(6C) would not result in invalidity of the application. He added that "no purpose would be served by invalidating an application for a failure to provide documents which the Tribunal can obtain in any event." (page 391)

32. In reaching that conclusion, his Honour observed:

"12 To arrive at the answer to the question posed I take account of the following matters. First, s 500(6C) is not expressed to be an essential requirement to be observed before the Tribunal determines an application for review. Secondly, the only documents that must accompany the application for review are those provided by the Minister to the applicant. If the Minister fails to comply with s 501G, an event which will not invalidate his decision (s 501G(4)), the purpose of the subsection will not be satisfied.. Thirdly, however, and this is important to note, once an application for review has been received by the Tribunal, the Minister must be notified (s 500(6E)) whereupon, by reason of s 500(6F), the Minister must within 14 days lodge with the Tribunal two copies of every document, or part of a document, that:

`(i) is in the Minister's possession or under the Minister's control; and

(ii) was relevant to the making of the decision; and

(iii) contains non-disclosable information'

Fourthly, the scheme of the legislation thus far described is that when an applicant has complied with s 500(6C) and the Minister with s 500(6F), the Tribunal should have before it most, if not all, of the documents that will be referred to in the course of the review. Fifthly, it will be evident to the Tribunal that an applicant has not complied with s 500(6C) shortly after the Minister has been notified of the application. In that event the Tribunal, if it is so minded, can require the Minister to supply the missing documents. Section 500(6K) permits the Tribunal to require the production of documents. In any event, if relevant documents have not been produced they would be supplied by the Minister." (pages 390-391)

33. Further, Finkelstein J noted, failure to comply with s. 500(6C) would still mean that the application would be dealt with expeditiously as intended by Parliament. Cancellation of a visa would result in the deportation of the non-citizen and so cause great hardship to him or her and to his or her family. It was difficult to imagine, he said, that Parliament intended that a non-citizen should lose his or her right to review merely because documents that remained in the possession of the Minister had not been lodged.

34. Applying the principles in these cases to s. 412 as well as to s. 500(3), I must have regard to the scope and purpose of the provisions and of the Migration Act generally. When I do that in the context of s. 25 of the AAT Act and in the context of review provisions in the Act, it seems to me that Parliament did not intend the limitations to be in some way procedural. Had it done so, it could have been expected to provide that the RRT could extend the time allowed for the lodgement of an application. It could also be expected that it would have been more inclined to adopt the language of s. 29(1)(b) of the AAT Act i.e. the language of "may" rather than of "must". Having regard to these matters, it seems to me that s. 412 is a substantive provision intended to limit the rights of those who are affected by decisions enumerated in s. 411. Therefore, compliance with it cannot be ignored and, unless an application is made by a person as prescribed by s. 412, the RRT does not have jurisdiction to consider it. There is no basis for distinguishing between the requirement in one sub-section of s. 412 from another.

35. The same conclusion must be reached in regard to s. 500(3) for similar reasons. Its provisions cannot be ignored or read down so that there is a reference to only some of the provisions that govern entitlement under Part 7 and not to others. It is clear from a reading of Part 7 that it intends to regulate closely applications for review in relation to, among others, decisions to refuse or cancel protection visas. By predicating a person's entitlement to review upon his or her entitlement to seek review under Part 7, it seems to me that Parliament is expressing a clear choice to impose the same close regulation upon the review process. In this way, it ensures that all who have been refused a protection visa or who have had a protection visa cancelled are given the same opportunity to seek review, albeit in different tribunals and in respect of different issues. In so far as consistency promotes fairness amongst would be applicants, adopting what I consider to be the plain meaning of s. 500(3) leads to a fair result.

36. It follows that VAS is not entitled to make an application under s. 500(1) of the Migration Act for he would not be entitled to seek review of the decision under Part 7.. He would not be able to do so for he would be outside the 28 day time limit referred to in s. 412(1)(b) and that time limit can neither be extended nor disregarded by the RRT.

May the Tribunal nevertheless extend the time by relying on s. 29(7) of the AAT Act?

37. On its face, s. 29(7) of the AAT Act gives the Tribunal power to extend the time for the making of an application for review of a decision. It is equally clear from s. 25(3)(c) (see paragraph 16 above) that the enactment that makes provision for an application to be made to the Tribunal may specify the conditions subject to which an application may be made. The Migration Act is that enactment and, for the reasons that I have already set out, it is clear that Parliament has chosen to limit a person's entitlement to make an application by reference to what would have been his or her entitlement to do so under Part 7.. A person may apply for an extension of time when he or she is otherwise entitled to make an application or seek review. In this case and for the reasons I have given, VAS is not such a person. He is not entitled to seek review under Part 7 because he cannot make an application within the time limit prescribed by that section. He cannot use s. 29(7) to cure a want of entitlement to seek review. Section 29(7) is a provision extending time for lodgement of an application for review and it gives the Tribunal power to extend time in relation to matters in which it has jurisdiction. It does not give the RRT power to extend time under Part 7.. The Tribunal could not use its power under s. 29(7) to extend time under Part 7 as it has no jurisdiction in relation to that Part and cannot interfere in the RRT's jurisdiction under that Part.

If VAS may seek review under s. 500, should an extension of time be granted to apply for review of the decision?

38. In considering the manner in which the discretion to grant an extension should be exercised, regard is traditionally paid to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1989) 58 ALR 305. In that case Wilcox J considered an application for extension of time pursuant to s. 11 of the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act"). After noting that s. 11 does not set out any criteria to be followed in exercising the Court's discretion and noting that there had been a number of decisions of judges of the Federal Court all sitting at first instance, he said:

"... I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the court's discretion:

(a) Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The `prescribed method' of 28 days is not to be ignored: Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550. Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained: Lucic v Nolan (1982) 45 ALR 411 at 416. 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: Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly (Neaves J, 9 December 1983, unreported, at p7).

(b) Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not `rested on his rights': per Fisher J in Doyle v Chief of General Staff (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon, and Douglas v Allen (Morling J, 3 April 1984, unreported, at p18 of the transcript) with Lucic at 414-5 and Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 519. The reasons for this distinction are not only the `need for finality in disputes' (see Lucic at 410) but also the `fading from memory' problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.

(c) Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension: see Doyle at p287; Duff at pp484-5; Hickey at pp525-7 and Wedesweiller at pp533-4.

(d) However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at p18; Lucic at p416; Hickey at p523. In this context, public considerations often intrude: Lucic, Hickey.. A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at p550; Becerra v Fowell (Morling J, 18 February 1983, unreported, at 12- 13)) or of established practices (Douglas at 19) is likely to prove fatal to the application.

(e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at p417; Chapman at p6.

(f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at pp534-5." (pages 310-311)

39. The Hunter Valley case has since been cited with approval and applied by the Federal Court, eg Burchett J in Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480 and Northrop J in Hoare v Deputy Commissioner of Taxation of the Commonwealth of Australia (1987) 14 ALD 476. It has also been followed in reported decisions of this tribunal such as Re Bonavia and Secretary, Department of Social Security (1985) 9 ALD 97 and; Re Bogaards and Commonwealth of Australia (1987) 13 ALD 578. Similar principles were applied by Mr R K Todd, Deputy President, in the case of Re Bell and Australian Telecommunications Commission (1983) 5 ALN N186 which pre-dated the decision in Hunter Valley and in Re Pepper-Clayton and Australian Telecommunications (1985) 7ALD 508 which post-dated it but made no reference to it.

40. In applying the guidelines set out in the Hunter Valley case, I am mindful that it was stated in that case and has been consistently stated in decisions of the Federal Court since that they are not exhaustive. I am also mindful that the Federal Court has said that there is no precondition that there must be an acceptable explanation of the delay before an application for an extension of time can be successful. While there is no pre-condition it is, however, to be expected that such an explanation will normally be given as a relevant matter to be considered (Comcare v A'Hearn (1993) 119 ALR 85 at 88 per Black CJ, Gray and Burchett JJ).

41. Mr Kissane did not take issue with the proposition that I was bound to have regard to Heerey J's judgement in VQAR v Minister for Immigration and Multicultural and Indigenous Affairs.. Given the time constraints under which these reasons have been prepared, I have not explored the authorities but accept that VAS was given a copy of the decision on 31 July, 2001.

42. It was a decision written in English. On the basis of the affidavit of Ms Barrio, I am satisfied that VAS was able to communicate in English with her and that he understood the import of the decision. I also accept for the purposes of this hearing that he was told that he had a right of review although it is not clear whether he was told that he had 28 days in which to do so.

43. The application for a protection visa and the decision refusing it had all been made at a time when VAS was actively engaged in appeals or applications to the Federal Court or the Full Federal Court. At the same time, he had ongoing proceedings in the High Court. It appears from judgements and decisions given throughout the history of his matters as well as from the chronology of events submitted in this matter that he was either legally represented and/or had a migration agent in relation to the range of matters in which he was involved with the Minister, Department, Federal Court or Tribunal. Having said that, I accept, on the basis of Mr Acquaro's affidavit, that his solicitor, Mr Acquaro, did not act for VAS in relation to his application for a protection visa. Mr Acquaro declined to do so as he is not a registered migration agent. On the same basis, I find that VAS did have a migration agent acting for him in relation to his application.

44. Even if he did not understand the decision of 31 July, 2001 and his appeal rights, these conclusions lead me to find that VAS had access to those who could be expected to advise him or, if they could not, who could be expected to refer him to those who could. Just why VAS did not seek their advice is left to speculation. Unfortunately, VAS's ill health prevented him from attending the hearing or giving any evidence at all. I am left with his affidavit that denies that he receive the decision at all but that is not consistent with Heerey J's finding.

45. Regard must be had to the merits of the case that VAS would present at any hearing of the substantive issues. The issue would be whether there are "serious reasons for considering" that VAS "...has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee" (Refugees Convention, Article 1F(b)). What is meant by the expression "serious reasons for considering" has been considered in a number of cases. In Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556, French J said that:

"The use of the words `serious reason for considering that' suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts. The precise construction of that phrase does not fall for consideration in the present case ..." (page 563)

46. Branson J observed in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 (Whitlam, Branson and Sackville JJ) that "Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker." (page 186)

47. The matter was considered also by Mathews J as President of the Tribunal in Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150. Her Honour referred first to the Canadian case of Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4^th) 173 in which the Canadian Federal Court of Appeal held that the words "serious reasons for considering" establish a lower standard of proof than the balance of probabilities. She continued:

"82. In any event, I do not agree with the standard which was set in Ramirez. I find it difficult to accept that the requirement that there be `serious reasons for considering' a matter raises similar issues to the test of `reasonable grounds to believe'. The requirement of seriousness goes well beyond that of reasonableness in my view. Nor do I agree that the `serious reasons for considering' test should be pitched so low as to fall, in all cases, beneath the civil standard of proof. The seriousness of the allegation itself and the extreme consequences which can flow from an affirmative finding upon it would, in my view, require a decision-maker to give substantial content to the requirement that there be `serious reasons for considering' (emphasis added) that such a crime has been committed. The process whereby the seriousness of the allegation influences the level of proof required to substantiate it is well known to Australian courts (Briginshaw v. Briginshaw (1938) 60 CLR 336, Helton v. Allen (1938-1939) 63 CLR 691)."

48. Finally, I will refer to the judgement of Weinberg J in Arquita v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 321 in which he considered the authorities to which I have referred. He concluded:

"54 It is sufficient, in my view, if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as `strong'.. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as `strong' without meeting either of these requirements.

55 To the extent that the reasons of Mathews J in W97/164 v Minister for Immigration and Multicultural Affairs; N96/1441 v Minister for Immigration and Multicultural Affairs; and W98/45 v Minister for Immigration and Multicultural Affairs suggest to the contrary, I respectfully disagree.

56 The expression `serious reasons for considering' means precisely what it says. There must be reason, or reasons, to believe that the applicant has committed an offence of the type specified. That reason or those reasons must be `serious'.

57 ...

58 In determining the meaning to be ascribed to the word `serious' in the context of Art 1F(b) it is necessary to bear in mind the fact that the Article operates to deprive a claimant for refugee status of the opportunity to have his or her claim considered on its merits. An unduly wide interpretation of the word `serious' in this context would affect the rights of the individual in a most profound way. One would expect, therefore, that the material in support of a belief that a person has committed an offence of the type specified would have significantly greater probative value than the material required to support an interlocutory injunction. Certainly it would have to go beyond establishing merely that there was a `prima facie' case, the test formerly favoured for the grant of an interlocutory injunction: American Cyanamid v Ethicon Ltd [1975] AC 396 at 407; [1975] 1 All ER 504 at 510; [1975] 2 WLR 316 at 323.

59 Perhaps a more pertinent analogy may legitimately be drawn with the test that must be satisfied before a person may be committed to stand trial for an indictable offence. That test is expressed in different terms in legislation relating to committal proceedings in the states and territories of Australia. ...

60 It is clear that a magistrate would not, under any formulation of the committal test which applies in this country, commit a person to stand trial for an indictable offence unless there were at least `serious reasons for considering' that he had committed the offence. That does not mean that the evidence must persuade the magistrate beyond reasonable doubt, or even on the balance of probabilities, of that fact. ...

61 ...

62 ...

63 ...

64 `Suspicion', as Lord Devlin said in Hussein v Chong Fook Kam [1970] AC 942 at 948; `in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove".' The objective circumstances necessary to demonstrate a reason to believe something, or to consider it to be so, need to point clearly to the subject matter of the belief. That is not to say that those objective circumstances must establish on the balance of probabilities, let alone beyond reasonable doubt, that the subject matter in fact occurred or exists. A fact may be considered to be true on more slender evidence than proof: George v Rockett (1990) 170 CLR 104 at 115-116; 93 ALR 483 at 490-1." (pages 333-335)

49. Mr Kissane also drew my attention to the judgement of Merkel J, with whom Madgwick and Conti JJ agreed, in NADB v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 71 ALD 41 in which he said that:

"... In determining whether the disqualifying crime is `serious' it is appropriate to have regard to the fact that it must be of such a nature as to result in Australia not having protection obligations to persons who commit such crimes. However, there is no textual basis for reading into Art 1F(b) an additional requirement of a balancing test nor would such a requirement be justified on the basis that it is giving effect to a purpose or object of Art 1F(b) of the Refugees Convention." (page 52)

50. When I have regard to the five offences of which VAS has been convicted overseas, I consider that, on their face, they may well have the requisite degree of seriousness. Those offences, together with the sentences that were imposed are:

"(i)	27 May 1980	Attempted extortion. Sentence: 22 months imprisonment and 300,000 lira fine Appeal: Unsuccessful.
(ii)	5 October 1980	Carrying a knife without good reason. Causing personal injuries (ambushed a person repeatedly stabbing him). Sentence: 30 months imprisonment. Served 11 months and 26 days; released as part of Presidential Decree 744/81
(iii)	10 September 1982	Causing personal injuries with a knife. Sentence: 8 months imprisonment and 100,00 lira fine.
(iv)	10 September 1982	Possession of narcotics; (heroin, cocaine and monoacetylmorphene). Sentence: 36 months imprisonment and 400,00 lira fine. Released after serving 2 years imprisonment under Presidential Decree 856/86
(v)	17 April 1984	Attempted extortion. Sentence: 2 years imprisonment and 1,000,000 lira fine. Served 12 months of sentence and fine remitted under Presidential Decree 394/90.

[VAS] was also sentenced in absentia for the following additional crimes in ...:

(i)	1 December 1986	Receiving stolen property in May 1980 Sentence: 16 months imprisonment and 800,000 lira fine.
(ii)	30 June, 1993	Assault on a fellow prisoner while in custody. Sentence: 36 months and 10 days imprisonment"

51. Without challenging the integrity of the convictions, I cannot make a finding contrary to the convictions and the facts upon which those convictions are based (Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 (Branson, Lindgren and Emmett JJ)). If that is kept in mind, it would be open to VAS to give evidence as to the circumstances in which the offences were committed. One of the difficulties that I have in this case is that he did not give evidence. Another is that there is no material relating to what the essential facts underpinning the convictions would be. I am left only with the facts of the convictions themselves and the sentences that have been imposed. On the basis of the letter sent by Mr Acquaro, I find that sentences of imprisonment that were not served or fines that were not paid before VAS came to Australia have been declared extinguished and/or pardoned and ordered to be expunged from his criminal record. The warrant for his arrest has been withdrawn and there are no other matters pending against VAS in the country from which he travelled to Australia. There is no evidence of the circumstances in which such pardons and extinguishment are granted but it may be that they support an argument that they are not as serious as might otherwise be thought to be the case. They, or some of them, were described by Deputy President Blow as "serious" in his decision but that was in the context of the review of a decision to refuse a visa on the basis of s. 501 of the Migration Act.

52. Having regard to the matter overall, there may be some merit in VAS's position that he has not committed a serious non-political crime within the meaning of Article 1F but whether he does is very much dependent upon the nature of the evidence that he would be able to lead. Although I realise that my decision will deny VAS the opportunity to present that evidence, I do not consider that he should be granted an extension of time within which to do so. This is a case in which VAS received notice of the decision. On the basis of Mrs Barrio's affidavit, I am also satisfied that, having given the notice to VAS, she had explained to VAS his right to come to the Tribunal. He had access to people with the qualifications who could assist him understand and take advantage of his review rights even if, as it did not, the notice of the decision did not set out the precise terms of those rights. With that access and having been told of his right to come to the Tribunal, he did not do so. His not doing so might have been a matter of choice or an oversight. He continued with other processes at the time that he could also have undertaken review of this decision. It seems to me that, for whatever reason, he chose two years ago not to seek review. His seeking to do so now cannot reasonably cause any significant prejudice to the Minister in participating in the review process. The passing of a further two years is unlikely to have had any greater dimming of memories than would already have occurred in 2001.

53. Having regard to all of these matters, I have concluded that the merits of the case he wishes to present are necessarily open to conjecture, he has rested on rights of which he was aware and which, for a reason that is not evident upon the material that I have, did not to pursue. He did so in the context of a regime that imposes quite strict time limits upon all applicants for protection visas. On balance, I do not consider that I should exercise my discretion to grant the application to extend the time.

54. For the reasons that I have given, I have decided:

1. the Tribunal does not have jurisdiction to consider the applicant's application for an extension of time; and

2. if the Tribunal did have jurisdiction, it would refuse his application.

I certify that the fifty-four preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President S A Forgie

Signed: ................................................................

P. Paczkowski Associate

Date/s of Hearing 17 September, 2003

Date of Decision 18 September, 2003

Counsel for the Applicant Mr B. Kissane

Solicitor for the Applicant Acquaro & Co

Counsel for the Respondent Dr S. Donaghue

Solicitor for the Respondent Australian Government Solicitor