Metera v Administrative Appeals Tribunal

• Jurisdiction: Australia Federal only
• Judgment Date: 04 November 2008
• Neutral Citation: [2008] FCA 1627
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Metera v Administrative Appeals Tribunal [2008] FCA 1627

ADMINISTRATIVE LAW – Procedural fairness – legitimate expectation

PRACTICE AND PROCEDURE – Administrative Appeals Tribunal – application for extension of time to file and serve an application for judicial review – whether it is ‘in the interests of the administration of justice’ to grant an extension of time – s 477A(2) of the Migration Act 1958 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Migration Act 1958 (Cth) ss 474, 476A(1)(b), 477(2), 477A(1), 477A(2), 483, 499, 500, 501

Century Metals and Mining NL v Yeomans and Another (1989) 40 FCR 564 considered

Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299 applied

Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648 considered
Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567 considered

Jeffers v R (1993) 112 ALR 85 considered

Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 considered

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 considered

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 considered

Pomare v Minister for Immigration and Citizenship [2008] FCA 458 considered

Renton v Bradbury & Anor [2001] QSC 167 considered

THOMAS MICHAEL METERA v ADMINISTRATIVE APPEALS TRIBUNAL and MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 1492 of 2008

COWDROY J

4 NOVEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1492 of 2008

BETWEEN:	THOMAS MICHAEL METERA Applicant
AND:	ADMINISTRATIVE APPEALS TRIBUNAL First Respondent MINISTER FOR IMMIGRATION AND CITIZENSHIP Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	4 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The Applicant pay the costs of the Second Respondent.

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 1492 of 2008

BETWEEN:	THOMAS MICHAEL METERA Applicant
AND:	ADMINISTRATIVE APPEALS TRIBUNAL First Respondent MINISTER FOR IMMIGRATION AND CITIZENSHIP Second Respondent

JUDGE:	COWDROY J
DATE:	4 November 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant applies for an extension of time in which to file and serve a Notice of Appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) delivered on 31 July 2008. Such decision affirmed the decision of a delegate of the second respondent (‘the Minister’) to cancel the applicant’s Class TY Subclass 444 Special Category Visa (‘the visa’) under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’).

FACTS

2 The applicant was born in New Zealand in 1967 and is a citizen of that country. Using the visa the applicant first entered Australia on 11 July 1983 when he was 16.

3 The applicant has a long history of criminal offences in Australia and has been convicted of a series of offences between 21 June 1983 and 1 March 2005, including larceny, motor vehicle theft, assault, aiding and abetting, armed robbery with an offensive weapon, common assault and break and enter. The applicant has been sentenced to periods of imprisonment in respect of several of such convictions.

4 On 30 November 1992 the applicant received a warning from the Minister that he risked deportation if convicted of any further offences. On 29 August 2007, following convictions for further offences, a delegate of the Minister sent to the applicant a notice of intention to consider cancellation of the visa. On 19 January 2008 a delegate of the Minister cancelled the applicant’s visa pursuant to s 501(2) of the Act on the ground that the applicant did not pass the character test.

5 The character test is defined in s 501(6) of the Act. A person does not pass the character test if, inter alia, ‘the person has a substantial criminal record (as defined by subsection (7))’: see s 501(6)(a) of the Act. Section 501(7) provides that a person has a ‘substantial criminal record’, if, inter alia, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)), or the person has been sentenced to two or more terms of imprisonment (whether on one or more occasions) where the total of those terms is two years or more (s 501(7)(d)). The applicant does not dispute that he does not pass the character test.

6 The applicant applied to the Tribunal for a review of the delegate’s decision on 11 February 2008. However as the application was made outside of the nine day time limit prescribed by s 500(6B) of the Act the Tribunal dismissed the application on the ground of lack of jurisdiction. Subsequently, as a result of this Court’s decision in Pomare v Minister for Immigration and Citizenship [2008] FCA 458, the applicant was renotified of the decision to cancel the visa on 8 May 2008. The applicant then reapplied to the Tribunal for a review of the delegate’s decision on 14 May 2008.

THE TRIBUNAL DECISION

7 In its reasons for decision the Tribunal referred to the ‘Visa Refusal and Cancellation under Section 501 of the Migration Act – Direction No. 21’ made by the Minister under s 499 of the Act (‘Ministerial Direction No. 21’). Such Direction sets out three primary considerations which a decision-maker is required to address, namely:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interest of the child or children.

8 In applying Ministerial Direction No. 21 the Tribunal gave detailed consideration to the factual circumstances surrounding the applicant’s family arrangements, the best interests of his children and the interests and expectations of the community. Having done so, the Tribunal concluded that ‘the strength of community protection and expectations’ outweighed the best interests of the children.

9 By its judgment delivered on 31 July 2008 the Tribunal affirmed the delegate’s decision.

APPLICATION BEFORE THIS COURT

10 The applicant wishes to challenge the Tribunal decision in this Court. The applicant claims that he filed a Notice of Appeal within 21 days of the Tribunal’s decision but that he used the wrong form for this purpose. The applicant claims that ‘when the correct form was used’ the time in which to appeal had expired.

11 The applicant filed an Application for Extension of Time to File and Serve a Notice of Appeal on 19 September 2008. The applicant filed a draft Amended Notice of Appeal on 14 October 2008.

12 Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) makes provision for appeals to this Court from decisions of the Tribunal. Pursuant to s 44(1) of the AAT Act, a party to a proceeding before the Tribunal may appeal a Tribunal decision to this Court on a question of law.

13 The Tribunal decision was made under s 500 of the Act. The Minister submits that such decision is a privative clause decision and accordingly, pursuant to s 474 of the Act, it cannot be challenged, appealed against, reviewed, quashed or called in question in any court.

14 The Court upholds such submission. It follows that s 483 of the Act applies. Such section provides:

Section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to privative clause decisions or purported privative clause decisions.

15 It follows that no appeal lies to this Court in respect of the decision sought to be appealed from, and to grant leave to the applicant to appeal would be futile.

16 The applicant could have filed an Application for Judicial Review of the Tribunal’s decision under s 476A(1)(b) of the Act. Such application must be made within 28 days of the actual notification of the Tribunal’s decision (s 477A(1)). If no application is filed within that time, the Court has a discretion to extend the 28 day period by up to 56 days if the application is made within 84 days of the actual notification of the decision (s 477A(2)(a)) and the Court is satisfied that it is ‘in the interests of the administration of justice’ to do so (s 477A(2)(b)). Accordingly, pursuant to s 477A(2)(a) the applicant had until 23 October 2008 to apply for such an extension of time.

17 At the hearing before this Court on 17 October 2008 the applicant was informed of the above alternative. The applicant requested the Court to treat his application as being an application pursuant to s 476A(1)(b) of the Act. The Court has considered the circumstances leading to this application and takes into consideration the fact that the applicant is not legally represented. It will therefore regard this application as one pursuant to s 476A(1)(b) of the Act. As such application has been made within the time limit prescribed by s 477A(2)(a) of the Act, the Court is only required to consider under s 477A(2)(b) whether it would be in the interests of the administration of justice to grant an extension of time.

THE APPLICANT’S SUBMISSIONS

18 The grounds stated in the draft Amended Notice of Appeal, now being considered as a draft Application for Judicial Review, are as follows:

a) Did the Tribunal fail to take into account a relevant consideration.

b) Did the tribunal [sic] deny the applicant procedural fairness.

19 In support of such grounds the applicant submits that the Tribunal failed to consider information relevant...