Badoui v Minister for Immigration and Citizenship [2008] FCA 156 (26 February 2008)

Last Updated: 28 February 2008

FEDERAL COURT OF AUSTRALIA

Badoui v Minister for Immigration and Citizenship [2008] FCA 156

BADOUI AL BADOUI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 1816 OF 2007

KENNY J
26 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1816 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BADOUI AL BADOUI Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	KENNY J
DATE OF ORDER:	26 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time in which to file and serve a notice of appeal be refused.

2. The applicant pay the first respondent’s costs of the application fixed in the sum of $1,200.00.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1816 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BADOUI AL BADOUI Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	KENNY J
DATE:	26 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for an extension of time in which to appeal from a judgment of the Federal Magistrates Court of 17 July 2006. The application before the Federal Magistrates Court sought judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) of 10 July 2002 to refuse to grant a visa to the applicant.

2 The applicant is a citizen of Lebanon, who arrived in Australia on 15 April 1996. The applicant lodged an application for a sub-class 806 – Family (Residence) (Class AO) visa, claiming special need relative status on 11 April 1997. A delegate of the first respondent refused the application on 16 December 1999. On 12 January 2000, the applicant applied to the Tribunal for a review of that decision. The Tribunal gave its decision against the applicant on 10 July 2002.

PREVIOUS DECISIONS

3 The Tribunal found that the applicant was not a ‘special need relative’ at the time of the visa application. Whilst the nominator was paraplegic as a result of an industrial accident in 1985, the nominator’s wife had cared for him for the 11 years prior to the applicant’s arrival in Australia. The Tribunal found that at the time of application the "type of long term care and assistance being provided to the nominator by his brother" was "companionship and his predominant role was assisting in the organisation and facilitation of the nominator’s new family home". Care and assistance of this type was, so the Tribunal found, insufficient. The Tribunal also stated that there was no evidence as to why the nominator could not be assisted by his wife and adult children, or other family members. Since the applicant did not meet the relevant criteria at the time of application, he was not eligible for the visa.

4 On 2 September 2004, the applicant filed a judicial review application in the Federal Magistrates Court. On 22 April 2005, the Federal Magistrates Court dismissed this application, with costs fixed in the sum of $2,600. These orders were made by consent, following the filing of a notice of objection to competency by the first respondent.

5 On 20 January 2006, however, the applicant applied again to quash the decision of the Tribunal of 10 July 2002. In an affidavit sworn on 18 January 2006, the applicant affirmed that he did not "agree with and at the time ... did not understand the consequences of" the consent order. In this affidavit, the applicant also said that his former solicitors had written to the Minister on 23 May 2005 seeking a favourable exercise of the Minister’s discretion under s 351 of the Migration Act 1958 (Cth) ("the Act") and that this request had been refused. The refusal had been communicated to him on 16 August 2005. The applicant also alleged jurisdictional error on the Tribunal’s part "because it failed to consider favourable material and medical evidence on file as well as why other members of family [sic] are not available to replace the visa applicant". The applicant further alleged that the Tribunal had failed to take into consideration "the consequences of my brother’s situation without my continuous assistance".

6 After examining the relevant background to the matter and undertaking a review of the applicant’s claims, the Tribunal’s reasons, and the grounds in the applicant’s application, the learned Federal Magistrate accepted that, while the applicant may not have understood why he signed the consent orders, there was no evidence of fraud or other wrong-doing on his solicitor’s part and that "he must have been advised by his legal representatives about the consequences of agreeing to such orders".

7 In his reasons for judgment, his Honour further observed that:

"The applicant stated that he engaged the services of solicitors ... who withdrew his application from the Court, by consent, without his knowledge. The applicant therefore claimed that he did not understand the nature, or the consequences, of what arose from his withdrawing from the matter before the Court. However, the applicant was unable to provide any evidence of such wrong-doing on the part of the solicitor".

8 His Honour treated the new application before him, as, in effect, an application to set aside the orders earlier made by consent. As to this, his Honour said:

"There is nothing before the Court, nor was it asserted by the applicant that there was no attempt by his legal representatives to explain these circumstances to him (even though he may not have really understood, or even realised the full implications). The application to the Court was dealt with by consent and the applicant then pursued intervention by the Minister. When this was unsuccessful he has now sought to recommence proceedings before the Court. In my view, it is not open to the Court, in all the circumstances before it, ... to make any assumptions that solicitors acted improperly or acted without instruction in this matter.

9 In this regard, his Honour continued:

"To the extent that there has been such a long delay since the consent orders were signed, and since the ‘Section 351’ application was refused on 16 August 2005 the applicant had ample time to raise his concerns with the solicitors, and with the Court, and had ample time during that period to seek alternative legal advice. Therefore, the circumstances giving rise to the consent orders mean that the applicant is bound by the actions of his representatives. Further, that he has also had legal advice, and he chose to have this matter dismissed by those consent orders [sic]. There is nothing to indicate that the applicant’s solicitors were acting without instructions. If anything, the applicant appears to understand that consent orders were signed, although he may disagree with the consequences now.

....

The applicant has not provided any evidence to support, or establish, that it would be in the interests of justice to set aside the consent orders".

His Honour expressed sympathy for the applicant’s situation and considered that the matter raised humanitarian and compassionate grounds.

APPLICATION FOR AN EXTENSION OF TIME

10 Under the Rules of this Court, the applicant was required to file and serve a notice of appeal within 21 days from the date of Federal Magistrates Court judgment, namely, on or before 7 August 2006: see O 52 r 15(1). The applicant filed his application for an extension of time in which to appeal on 5 September 2007, a year and 29 days outside the prescribed appeal period. Pursuant to O 52 r 15(2), the time limit in O 52 r 15(1) may be extended at any time for ‘special reasons’. In Jess v Scott (1986) 12 FCR 187, a Full Court of this Court said, at 195:

"...the expression ‘special reasons’ is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression ‘for special reasons’ implies something narrower than this."

11 In his affidavit filed on 5 September 2007, the applicant relied on the fact that the Federal Magistrate had encouraged him to write to the Minister about his circumstances. He did this, but did not receive the Minister’s reply until about a year later, in August 2005. This letter informed him that the Minister declined to exercise his discretion under s 351 of the Act in his favour. The first respondent agreed today that relevant guidelines would discourage decision-making under s 351 of the Act, while ever there was a relevant proceeding in court. The delay on the applicant’s part, though lengthy, was therefore understandable in part in the circumstances. This by itself would not necessarily justify me granting him an extension of time, more particularly as I am not satisfied that the proposed appeal has any prospects of success.

12 Consideration of the reasons for judgment of the Federal Magistrate discloses no error. His Honour carefully considered the principles that govern consent orders and made no apparent error of principle. Indeed, the applicant’s draft notice of appeal does not challenge his Honour’s statement of these principles or his application of them. Rather, the proposed notice of appeal challenges the Tribunal’s decision, but such a challenge is precluded by the consent orders previously made.

13 In any event, as the Federal Magistrate’s examination showed, there is no apparent error in the Tribunal’s decision. Furthermore, the applicant’s draft notice of appeal does not seek to raise any such error. Indeed, the applicant’s draft notice of appeal discloses no ground of error that might be rectified on an appeal. The first of the draft grounds does not disclose any ground of appeal. The second and third grounds would invite the Court to review the merits of the Tribunal’s decision. Neither this Court on appeal nor the Federal Magistrates Court as the first instance judicial review court can engage in re-examination of the merits of a Tribunal’s decision.

14 For these reasons, I would refuse the application for an extension of time, with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated: 26 February 2008

The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	26 February 2008
Date of Judgment:	26 February 2008