Applicant A388 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for judicial review made to the High Court but remitted to this Court. The application seeks a writ of certiorari to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 6 September 2000, and other consequential orders. The decision of the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa. The application was instituted almost one year and nine months after the time required by the High Court Rules. 2 What is before me is an application for an extension of time for the institution of those proceedings. The law in relation to this application is as stated by von Doussa J in Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567. There are two primary issues to be considered upon such an application. The first is the reasons for the delay and the second is the prospects of success if the extension is granted. 3 As for the reasons for delay, the applicant has filed an affidavit in which he explains he thought he was a party to a class action in the High Court. The details in relation to that are either non-existent or not compelling. However, I would not be prepared to reach the conclusion that the affidavit should not be believed merely on the material before me. This is particularly so where the affidavit filed by the respondent's solicitor, Ms White, contains a number of matters of hearsay which, in the circumstances I am also not prepared to rely upon. As to the issue of the reason for delay, if left by itself, I would adjourn these proceedings to enable further affidavits to be filed, and if either party wished it, cross-examination of deponents. 4 However, it is unnecessary to take that course if the application is d ismissed in any event because it has no prospects of success. As to that, Mr Clisby has put to me that the Tribunal breached the rules of procedural fairness by not giving to the applicant a fair opportunity to be heard. 5 It is true that the Tribunal proceeded in the absence of the applicant. The reasons for that are set out in the Tribunal's decision. In particular, the Tribunal records that on 6 July 2000 the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at the hearing on 16 August 2000. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The applicant was also asked to advise the Tribunal by 20 July 2000 whether he wished to come to a hearing. The letter was sent to the applicant at his nominated home address. A copy of the letter was also sent to his adviser. On 18 July 2000 the Tribunal's letter to the applicant was returned to it unclaimed and marked "return to sender - wrong address". The Tribunal received no reply to a copy of this letter sent to the applicant's adviser. On 21 August 2000 an officer of the Tribunal made inquiries with the applicant's adviser. The Tribunal's reasons record that the relevant file note says that a message was left for the adviser to ring back and no response was received. The Tribunal then made inquiries with the department as to the applicant's address. The department advised that it had no address other than the address contained in the applicant's initial application. The Tribunal recorded that the applicant did not further contact the Tribunal; he did not provide a telephone number in his application for review. He has not provided the Tribunal with any further contact details. 6 The Tribunal found that in these circumstances it was satisfied "that it has discharged its obligation to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues pertinent to the decision under review. This matter has therefore been determined on the evidence before the Tribunal." 7 It is true that the Tribunal was under a duty under ss 425 and 425A of the Migration Act 1958 (Cth) (the Act) to provide an invitation to the applicant to attend the hearing. It is also true that that obligation is not only a formal obligation. Nevertheless, the Tribunal is not under some obligation to make inquiries beyond those reasonably required to ascertain where the applicant is. In this case the inquiries made by the Tribunal seem to me to be eminently reasonable. 8 Mr Clisby has suggested to me that there may be some other problems that further inquiries by him might reveal. With respect, that is not what these proceedings are about. Proceedings for judicial review are not to be instituted for some fishing expedition. 9 In the result the Tribunal relied upon the evidence that was before the delegate. Having considered that evidence the Tribunal concluded that: "In view of the vague claims which the applicant has advanced, and in as far as those claims give rise to a fear of harm on the basis of his political opinion and membership of AISSF[All Indian Sikh Student Federation], I am not satisfied on the applicant's own evidence or the independent evidence before me that the applicant has experienced persecution in [the] past or that he has a well-founded fear of persecution in the future." In my view the analysis by the Tribunal does not reveal any jurisdictional error. 10 In the circumstances, I cannot see that there is any prospect of the applicant being successful if an extension of time were granted. Consequently I cannot see any justification for adjourning this matter so as to receive further material to explain the reasons for the delay. In all the circumstances the application for the extension of time is denied. 11 I make the following orders: 1. The application for extension of time is refused. 2. The application for judicial review is dismissed. 3. The applicant to pay the first respondent's costs of $2500, including the costs of the proceedings in the High Court. 4. No order as to costs in relation to the second and third respondents. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.