Applicant A2 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 issue proceedings claiming relief in the nature of the prerogative writs of certiorari, prohibition and mandamus. It is common ground that the proceedings were issued out of time in the High Court and that an extension of time is necessary. 2 The applicant, who is a citizen of Sri Lanka, arrived in Australia on 9 March 1998. Shortly thereafter he applied for a protection visa. On 9 June 1998 a delegate of the first respondent refused that application. On 6 July 1998 the applicant sought a review of the delegate's decision by the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed the decision of the delegate on 15 August 2000, its reasons for decision being handed down on 1 September 2000. On 10 January 2002 the applicant made application in the High Court of Australia for constitutional writs under s 75(v) of the Constitution. 3 Those proceedings were remitted to this Court, along with 364 other matters on 7 February 2003. The merits of the application were not considered by the High Court before the remittal occurred. The processing of that application is now to take place in this Court according to the rules of this Court: see O 51A of the Federal Court Rules. 4 It is common ground that the application remains subject to the time limits imposed by the High Court Rules in respect of applications for an order nisi for a writ of certiorari: see O 55 r 17 of the High Court Rules (a six month time limit) and for an application for a writ of mandamus: see O 55 r 30 (a two month time limit). It is also common ground that, under High Court Rule O 60 r 6, the Court has power to enlarge the time appointed by the High Court Rules. 5 It is apparent from the facts already recited that there was a period of approximately 16 months between the handing down of the decision of the Tribunal and the application to the High Court. The applicant was not however supinely inactive throughout that period. On 6 October 2000 he applied to the Federal Court of Australia for review of the decision of the Tribunal. That application was dismissed by consent on 16 May 2001 and the applicant was ordered to pay the respondent's costs affixed at $2,000. On 13 June 2001 the applicant changed tack. Instead of challenging the decision of the Tribunal on the ground of error of law or other error, the applicant accepted the correctness of that decision and made application to the Minister pursuant to s 417 of the Migration Act 1958 (Cth), requesting the Minister to exercise his public interest power to substitute a decision more favourable to the applicant than the decision of the Tribunal. The Minister advised the applicant that he declined to consider exercising that power on 17 December 2001. On 10 January 2002 the applicant filed his application in the High Court of Australia. 6 The principles to be applied in the exercise of the discretionary power to extend time under O 60 r 6 of the High Court Rules were considered by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (Marks). His Honour observed at par [13] that in the case of an application to extend time to bring an application under s 75(v) of the Constitution an inquiry must be made as to the prospect of the application succeeding if an extension of time is granted. The explanation for such a delay is also a relevant consideration. Further, his Honour explained in par [15] that the discretion must be exercised having regard to all the circumstances of the case; in particular 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. In considering those matters it is necessary to have regard to the humanitarian purposes of the Refugees Convention under which Australia may owe an obligation to protect a refugee (see Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 179 ALR 238 at [224]), and also to the fact that it is only necessary for the applicant to establish that there is an arguable case to be considered: see Marks at par [18]. 7 Another fundamental consideration is the length of the delay that has occurred. That matter was addressed by McHugh J in Marks, having regard to the circumstances of the case before him, at par [16]. His Honour said: 'Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935, "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.' In this case significantly more than one year has elapsed. In my opinion there is nothing exceptional about the case that would justify an extension of time. 8 The applicant, by direction of this Court made on 3 April 2003, filed an affidavit in support of his application for an extension of time. The directed purpose of that affidavit was to explain the reasons for the delay which had occurred. The applicant explained his failure to go on with the proceedings in the Federal Court by saying that it was financially impossible for him to do so and later he said that he 'appealed' the Tribunal decision to the Federal Court (by which I take him to mean the commencement of the review proceedings) and decided to await the outcome of those proceedings before going to the High Court. That would be understandable if there were then no significant delay between the dismissal of the proceedings on 16 May 2001 and the commencement of the application in the High Court on 10 January 2002. 9 There was a significant delay for that period. I do not think the delay is satisfactorily explained by the fact that the applicant hoped during that time to get a favourable exercise of the Minister's power under s 417. The application under s 417 indicates an acceptance of the decision of the Tribunal, and a decision on the part of the applicant to take another course. Having taken that other course, in my opinion he must live with the consequence of the delay that occurred. 10 The delay therefore is not adequately explained. That, alone, in my view, would be sufficient to refuse the application for an extension of time. However it is appropriate to look also at the likely prospects of success of the application if time were extended. In my opinion the proposed application would have no realistic prospect of success. There is no material on the file that provides a basis for arguing that there is any issue that could lead to a favourable grant of relief if the applicant were allowed to proceed. 11 Counsel for the applicant has made the best attempt possible on the material to argue that there might be an issue relating to the use which was made of country information by the Tribunal. The submission is that the Tribunal made use of country information in the course of its reasons for decision that had not been brought adequately to the attention of the applicant, and that there could have been a denial of procedural fairness because the applicant was not given an appropriate opportunity to respond. 12 In my opinion a reading of the material before this Court indicates that such an argument is without substance. The applicant, broadly speaking, made two claims why he held a well-founded fear of persecution. The first was that the authorities would persecute him for his political opinion as a one time member of the Janatha Vimukthi Peramuna (JVP), and because the authorities thought he was a sympathiser with the Liberation Tigers of Tamil Eelam (LTTE). The second was that he feared persecution from the LTTE who suspected he had given information harmful to their cause to the authorities. 13 In the course of considering the first of these claims, the Tribunal referred to country information, part of which was used favourably to the applicant. The applicant claimed that the authorities attention was drawn to him because he had been involved in the course of his business in delivering a container which the authorities thought was filled with arms and ammunition. The Tribunal at p 10 said: 'I accept that the applicant genuinely feared that his past association with the JVP could result in him being prosecuted after he attracted the interest of the police in September 1997.' (I interpolate that that was at about the time of the delivery of the container and there was also evidence of an earlier relationship between the applicant and the JVP political party.) The Tribunal continued: