Applicant A215 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 a writ of certiorari to quash a decision of the Refugee Review Tribunal (the Tribunal) given on 21 May 2001 and for consequential orders. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act). 2 Counsel for the applicant has indicated that the Tribunal's decision was notified to the applicant on 13 June 2001, some 15 months prior to the institution of this application in the High Court on 19 September 2002. In Applicant A16 of 2002 v Minister fro Immigration & Multicultural & Indigenous Affairs [2003] FCA 567, von Doussa J, in a similar matter, has referred at some length to the relevant procedural rules, including the time limits applying in the present circumstances, and to the principles which should be applied in determining the present application. Counsel have agreed that his Honour correctly expressed those principles and identified those procedural prescriptions, and I shall not repeat them. I adopt them and apply them in the present matter. 3 Counsel for the applicant identified two considerations which, he contended, were relevant to the exercise of the discretion to extend the time under O 60, r 6 of the High Court Rules in the present matter. The first concerned the delay and the reasons for the delay. The second related to the merits of the application. 4 The applicant says that the sole reason for the delay in instituting proceedings in the High Court was that he could not afford to do so. He was unemployed and as soon as he could borrow money to obtain professional assistance to make the application in the High Court, he did so. I do not want to be taken as accepting that such an explanation is a satisfactory explanation for delay. However, in this matter I do not think it is necessary to take that aspect further. I propose not to weigh in the scales in any sense adversely to the applicant the delay in instituting the proceedings in the High Court. 5 It seems to me that the more significant issue is whether he has any prospect at all of succeeding in his application if an extension of time as sought were to be granted. If he has no prospect at all of succeeding, then I do not think it is appropriate to grant the extension of time which he seeks. 6 Counsel for the applicant identified that the sole contention of the applicant is that the Tribunal committed jurisdictional error so as to warrant the grant of the relief which he claims by reason of a failure to accord him procedural fairness in connection with the making of its decision. I accept that such a failure on the part of the Tribunal, in particular a failure to give him the opportunity to be heard (which is the way in which he claims not to have been accorded procedural fairness), would give rise to jurisdictional error on the part of the Tribunal so as to empower the court to quash its decision: see Plaintiff S157/2000 v Commonwealth of Australia (2003) 195 ALR 24. 7 It is, therefore, necessary to turn to consider whether the applicant has any prospect of showing that, in fact, he was not given the opportunity to be heard before the Tribunal. The Tribunal in its reasons records the following: