Case: Applicant M221 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 45
Outcome: cited
An important consideration which informs the exercise of the discretion on the ground of delay is that the public interest requires there be an end to litigation about the efficacy of acts and decisions of public bodies and officials; see Applicant M221 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 45 at [19] per Weinberg J; see also the Full Court in S58 at [4]. 34 In the present case it is clear that applying these authorities, a delay of nearly nine years would be excessive and very difficult to excuse. Even a delay of nearly two years from the time the appellant entered immigration detention would call for a clear explanation. 35 But what the authorities make plain is that the length of the delay is computed from when an applicant becomes aware of the decision and all the circumstances must be examined. There are no hard and fast rules as to what length of time will preclude relief. 36 Here, the learned Federal Magistrate found the delay was over eight years from the time the decision was made. Whilst his Honour did not say so expressly, he seems to have proceeded on the assumption that the appellant was aware of the decision from the time when it was made in 1996. 37 His Honour also seems to have assumed that the appellant was aware of the decision from at least the time when an unsuccessful application was made to the Minister under s 417 of the Act . His Honour did not state uncategorically that the appellant was then aware of the decision but he said that the request under s 417 showed that "someone must have known" of the decision of the RRT before 27 June 1997. 38 It may well be, as the learned Federal Magistrate found, that there was excessive delay. And it may well be, as his Honour held, that the appellant has no explanation for it. 39 However, the difficulty with the approach which the Federal Magistrate adopted was that he made findings of fact without hearing any evidence from the appellant. He acted solely upon submissions from the bar table and without testing any of the statements which were made to him by an unrepresented applicant. 40 I understand the pressures on the Federal Magistrates' Court to provide a speedy and efficient determination of matters which come before it. I am also mindful of what might be thought to be a practical and commonsense approach to the disposition of cases. Nevertheless, as a general rule, the judicial power of the Commonwealth cannot be exercised to deny relief for admitted jurisdictional error, consisting as it does in this case, of a denial of statutory procedural fairness, without evidence tested in the ordinary way. 41 That is especially so in the present case because the learned Federal Magistrate apparently did not believe the explanation proffered from the bar table. The appellant's overall explanation for his delay was that he did not know of the decision until 28 November 2005. The Federal Magistrate cannot have believed this because he proceeded on the basis that the appellant knew of the decision either from 1996 or at least when the unsuccessful request was made under s 417. 42 There is authority for the proposition that a person who seeks the exercise of the Minister's powers under s 417 implicitly asserts that there is a decision of which he or she is aware; see S58 at first instance per Madgwick J at [18]. But, in the absence of evidence from the appellant and in light of the learned magistrate's finding that "someone must have known", it cannot be said that this issue has been adequately addressed by the learned magistrate. It may be unlikely that the s 417 request was made without instructions from the appellant, but that was an issue of fact to be tested by proper evidence. 43 It may well be that, as the learned Federal Magistrate apparently assumed, the appellant's decision to avoid Departmental officers, constituted a deliberate decision to abandon his case. But it was necessary for that to be tested in the witness box, particularly as it was at odds with the appellant's stated explanation that he had only just become aware of the decision. 44 I note that the learned Federal Magistrate made reference to the appellant's abandonment of his wife and children in China. It is difficult to see why that constituted a relevant consideration. The Minister's counsel submitted that these were merely passing comments. I do not need to consider whether I should accept that submission because of the views I have reached as set out above.