Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is a notice of motion seeking an extension of time within which to apply for relief in the nature of writs of certiorari, mandamus and prohibition. An application for writs of that kind was filed in the High Court of Australia on 18 February 2002. That matter, along with some 364 other matters of a like kind, were remitted to this Court by order of the High Court of Australia made on 7 February 2003. This matter was not considered on the merits at all in the High Court. The matter was remitted subject to a direction that it proceed in this Court as if the steps already taken in the application in the High Court had been taken in the Federal Court. 2 The reliefs in the High Court were sought under s 75(v) of the Constitution, and concerned a decision of the Refugee Review Tribunal (the Tribunal) which affirmed a decision of a delegate of the Minister, the first respondent, to refuse protection visas to the applicant, his wife and their child. 3 It is common ground, indeed it is the basis upon which this application is made, that the application was filed in the High Court outside the time limits that apply in the High Court for such proceedings. In particular, by High Court Rule (HCR) O 55 r 17, an application for an order nisi for a writ of certiorari must be made within six months after the date of the judgment, order, conviction or other proceeding which is to be challenged, and by HCR O 55 r 30, an application for a writ of mandamus or an order in the nature of mandamus must be made within two months of the date of the refusal to hear, or within such further time as the Court allows. HCR O 60 r 6 contains a general power to enlarge time. 4 The primary relief claimed is certiorari to call up and quash the decision of the Tribunal. A writ of mandamus is sought as part of the consequential relief to require the Tribunal to rehear the matter. That question would not arise until the existing decision of the Tribunal is quashed. 5 The applicant, his wife and their child had made applications for a protection visa on 30 June 1997. They had arrived in Australia a year beforehand. The delegate of the Minister refused to grant visas on 29 August 1997. The Tribunal affirmed that decision on 20 July 2000. The application for orders nisi was not filed in the High Court of Australia until 18 February 2002. That is more than 18 months after the decision of the Tribunal. The proceedings are therefore far out of time. 6 Upon the remittal of the proceedings to this Court, O 51A of the Federal Court Rules governs the procedures which are then to be followed and, in particular, O 51A r 2A provides that other orders of the Federal Court Rules will apply to the remitted proceedings so far as they are relevant and not inconsistent with O 51A. Order 51A r 5 in substance provides that when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute and, if satisfied that an order absolute should be made, will not make an order nisi but will proceed directly to make the order absolute. In this matter the Court has not yet reached that point and will not do so unless leave to extend time is granted. 7 Counsel for the applicant has taken the Court to authorities which have considered the power in the High Court to enlarge time under HCR O 60 r 6: see Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2001) 185 ALR 489 at [31] - [34]; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 at [223] and [224]; Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (Marks); and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [82] - [83], [123], [150], [172] and [217]. 8 The broad principles established by those cases are summarised by McHugh J in Marks in pars [13] and [15]. In short, an extension of time can only be granted if it is necessary to do justice between the parties. In exercising its jurisdiction, it is necessary for the Court to always to consider the prospect of the application succeeding if an extension of time is granted; it is necessary to have regard to all the surrounding circumstances, including the explanation for such delay, the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. 9 Within the last of those matters is encompassed the fact that an application for a protection visa raises humanitarian issues and the Court must be careful in the exercise of the discretion not to prevent the applicants having a proper application for protection duly considered by the appropriate tribunals in this country: see Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 at [224]. 10 Moreover, on an application such as this, a fairly liberal view should be taken as the merits will be fully considered at a later hearing if time is extended. 11 McHugh J in the Marks at [18] made a similar comment in the context of proceedings where the application for an order nisi would receive separate consideration when the merits could again be looked at before the order nisi were made. The situation is slightly different in this Court by reason of O 55A r 5 which directs the Court to proceed straight to the real merits of the case rather than adopt a two-stage approach of an order nisi first and then further consideration of whether the order nisi should be made absolute. 12 In the present case, in my view, the critical issue is the prospects of success of the proceedings if time is extended. The application, as I have indicated, was brought approximately 18 months after the decision was given in the Tribunal. That is a very long time. In Marks at [16] McHugh J observed: 'In all but very exceptional cases, they [that is, the time limits under O 55] should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of the proceedings in this Court.' 13 Without more, therefore, the applicant in this case has a very difficult task in persuading the Court that an extension of time should be granted. The history of the matter since the Tribunal gave its decision adds to that difficulty. 14 The decision of the Tribunal was given on 20 July 2002. There was a delay of a few weeks whilst the applicant and his wife and child were advised of the decision. On 1 September 2000 an application for judicial review in the Federal Court was filed (Action No V 668 of 2000). Contrary to the affidavit filed by the applicant in support of this application, the application was not determined on the merits. On 13 March 2001, by consent, the application for review was dismissed and the applicant was ordered to pay the respondent's costs and disbursements fixed in the amount of $7,000. The amount of the costs indicates that the proceedings for review must have advanced almost to the point of trial before the applicant agreed to the proceedings being dismissed. 15 Soon after the application for review was dismissed, the applicant instructed a registered migration agent to write to the Minister requesting the exercise of the Minister's public interest power under s 417 of the Migration Act 1958 (Cth) to substitute for the decision of the Tribunal a decision more favourable to the applicant. The request to the Minister was declined on 10 July 2001. 16 The applicant and his family then appear to have changed tack. Their attempt to obtain protection visas was, it seems, abandoned, and the applicant's wife made an application for a Special Eligibility (Residence) (Class AO) visa under subclass 832 of the Second Schedule of the Migration Regulations 1994 (Cth), otherwise referred to as a 'Close Ties' visa. That application was dismissed by a delegate of the Minister. The dismissal was later reviewed at the request of the applicant's wife by the Migration Review Tribunal, and affirmed in a decision dated 16 January 2002. 17 The reasons of the Migration Review Tribunal, which are publicly available, indicate that the application was made on two grounds. First, because the daughter of the family had been in Australia for some time and was no longer fluent in the Singhalese language, and therefore would be likely to be schooled better in Australia. Secondly, because the applicant's wife had a sister resident in Australia who suffered a heart condition, and she wished to remain with her to offer assistance. 18 On 18 February 2002 the application for constitutional writs was made in the High Court of Australia. 19 On that summary of events, I consider the inference arises that the applicant and his family decided in March 2001 to accept the decision of the Tribunal as correct, and to adopt another course. The applicant in effect abandoned the claim that he later sought to bring in the High Court, and did so deliberately. That conclusion, in my opinion, points against an exercise of discretion to extend time to bring the proceedings in the High Court. However, the merits are of central importance, and if the papers before the Court demonstrate a reasonably strong case, notwithstanding the very long delays, I think the discretion should be exercised in favour of the applicants. 20 I turn to the merits. For reasons which follow, in my opinion the lack of merit in the proposed application is conclusive against the grant of an extension of time. 21 The applicant and his family failed in the Tribunal because the applicant was not believed, and comprehensively not believed. The outcome of the visa applications of his wife and child were dependant on his claims being accepted. The Tribunal commenced its 'Findings and Reasons' with the observation that it found the applicant 'was not a credible witness on the basis that his evidence was unsubstantiated, implausible and inconsistent in significant respects'. The Tribunal then proceeded to set out those reasons. 22 Nothing has been raised in the documents filed in support of the application for an extension of time which impinges at all upon the finding of the Tribunal that the claims of the applicant were without substance. Absent argument or material of that kind, there is no prospect that prerogative relief of the kind sought would be granted if an extension of time were given to the applicant. 23 In the course of oral argument this morning, it was suggested by counsel for the applicant that if leave were given, the applicant might be able to raise a 'Muin' point: see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. That argument is, to say the least, speculative. There is simply no information before the Court at the moment which would give even the slightest suggestion that such a point may arise. 24 There is no information before the Court as to what documents were taken into account by the delegate or, indeed, how or why the delegate decided as he or she did. There is no information as to what information was transmitted from the Department of Immigration and Multicultural Affairs to the Registrar of the Tribunal. It is impossible to assess whether any information that was before the delegate was not taken into account by the Tribunal, nor is there any information which would demonstrate that if information were not taken into account by the Tribunal that such information would make some difference to the outcome: see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502; (2003) HCA 6 at pars [36] - [37], [106], [112] and [149] - [151]. 25 Counsel suggested that it was possible to conclude from reading the reasons of the Tribunal that country information played some part in the adverse credit findings because at one point in the detailed reasons it was said that an aspect of the claims of the applicant were inconsistent with reports available from the United Kingdom Home Office and the United Nations High Commissioner for Refugees. It is, as counsel submits, apparent that those reports were taken into account. 26 Counsel goes a step further and says that the reports may not have been shown to the applicant before the decision and therefore there could be a denial of natural justice. Again, there is no information to show that the substance of the reports was not made known to the applicant. The fact that $7,000 costs were awarded against the applicant strongly suggests that the review proceedings had advanced at least to the point where that matter could have been explored and the applicant could have found out what documents were available and what were used and so on, but, notwithstanding that, no information is put before this Court. 27 More importantly, however, the comprehensive rejection of the credit of the applicant in my view did not turn upon the country information. It turned upon the Tribunal's assessment in other respects of the applicant. Whilst the credit finding stands, this case has no merit at all. 28 In my view, as the case is without merit, an extension of time should not be granted. The notice of motion seeking an extension of time is dismissed. The applicant must pay the respondent's costs, fixed at $1,250 including disbursements.