Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant arrived in Australia on 14 January 1996 together with his family. They applied for a protection visa on 15 October 1996. A delegate of the respondent refused that application on 30 June 1997. On 27 January 2000, the Refugee Review Tribunal (the Tribunal) affirmed the decision of the delegate. The present application before the Court is an application for the writs of mandamus prohibition and certiorari pursuant to s 75(v) of the Constitution in respect of Tribunal's decision. 2 The proceeding was instituted in the High Court and subsequently remitted to this Court by order of 7 February 2003. I have previously decided in the Applicant A64 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1142 that, in such circumstances, the time limitations prescribed by the High Court Rules nevertheless apply to the institution of the proceedings even though they have been remitted to this Court for hearing. 3 Under O 55 r 17 of the High Court Rules, an application for a writ of certiorari must be instituted within six months of the decision which is sought to be quashed. In this case, that is by 26 July 2000. The application was issued well outside that time. Also under O 55 r 30 of the High Court Rules, an application for mandamus must be issued within two months of the refusal of the adjudicating entity to hear the matter which it is required to hear. Again the application is well outside that time limit. There is no time limit for a writ of prohibition prescribed in the High Court Rules, but counsel for the applicants acknowledges that if certiorari in particular is not granted to quash the Tribunal's decision, there would be no basis upon which a writ of prohibition should issue. 4 Consequently, in my judgment, it was necessary for the applicants on the application to have sought and obtained an extension of time within which to have brought the application for the writs of mandamus and certiorari before the application could be entertained. In an earlier judgment in this matter (Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1050, I set aside a notice of discontinuance of the proceedings which had been filed by the former solicitor of the applicants. I gave leave to the applicants to revive any application for an extension of time within which to have instituted the proceedings. 5 The present application is, in part, an application for such an extension of time. Counsel for the applicants has indicated that the applicants accept that the application is well out of time. Given that, during the elapse of time between the Tribunal's decision and the application to the High Court on 4 March 2003, judicial review processes were being pursued in respect of the Tribunal's decision, in my view the delay in the institution of the proceedings is readily explained. Application for judicial review of the Tribunal's decision was heard by a single judge of this Court and was dismissed on 27 June 2000 (Arachchige v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 928). On 27 July 2000 an appeal to the Full Federal Court was lodged. That appeal was dismissed on 23 February 2001 (Dambagolla Arachchige v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 121.) Subsequently an application for special leave to appeal to the High Court was made. That application was refused on 15 February 2003. The High Court was then comprised of McHugh and Gummow JJ. McHugh J on behalf of the Court said: 'The Full Court correctly applied the relevant principles and there is no substance in the proposed grounds of appeal. In particular, there was no constructive failure by the Refugee Review Tribunal to exercise the jurisdiction conferred upon it. Accordingly, special leave to appeal must be refused with costs.' 6 By reason of the remarks of Kirby J in Re: Minister for Immigration & Multicultural & Indigenous Affairs v Ex parte 'A' (2001) 185 ALR 489, in my judgment those matters provide an understandable foundation for the delay in instituting the proceedings. If it had any merit, I would grant the extension of time which is sought. 7 Counsel for the applicants has, however, acknowledged that the application instituted in the High Court and now remitted to this Court has no merit, that it has no real prospect of success. I suspect the real concern is the costs of the application. In those circumstances, the justice of the case does not require that an extension of time should be granted (see per McHugh J in Re: Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 at [15].) 8 Accordingly, the application for an extension of time must be refused and the application itself dismissed. 9 The second part of the motion before the Court today is an application that the costs of the proceedings generally be payable by the former solicitor for the applicants, rather than by the applicants personally. The former solicitor for the applicants has not been notified of that application. It is necessary that he be notified. I propose to adjourn the application to enable that to be done and to give directions to ensure that the issue between the former solicitor for the applicants and the respondent can be fairly determined. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.