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[2004] FCAFC 98
Federal Court of Australia (Full Court)
2004-05-05
Crennan JJ
Original judgment source is linked above.
THe applicant's letter To the Court dated 23 February 2004 29 It appears that the applicant has not complied with the Chief Justice's orders. However, by letter to the Court dated 23 February 2004, the applicant stated: 'I'm writing in regarding [sic] to the recent decision you made in relation to my application for the permanent resident visa to remain in Australia.
I made my initial application in 1995 when the situation was volatile and there were serious threats to my life in Sri Lanka. For the past 9 years I have been living in Australia abiding it's laws and values and during that period I have lost most of my contacts with my friends and relatives in Sri Lanka and I have made Australia my home and intended to obtain a visa to remain permanently in Australia. I also like to express, in 27th February 1997 the decision made by the "Refugee Review Tribunal" in relation to my application for protective visa was unfair. My lack of knowledge and experience at that time might have force[d] the Tribunal to ma[k]e it's decision to reject my application after giving evidence at an interview through a Sinhalese interpreter present [at the] interview. I can only plead you to allow me to appeal to the "Refugee Review Tribunal" so I can better explain my situation and hoping to get a favourable decision. Since my arrival in Australia all my family members have migrated to Australia and New Zealand including my parents and I have no close contacts with Sri Lanka. [I] hope you will consider my situation and allow me to appeal to the "RRT" once more.'
Conclusions on the applicationS for leave to appeal and for extension of time 30 Apart from his letter dated 23 February 2004, the applicant has provided the Court with no material to justify the grant of his applications, and has not appeared before us today. In our view, for the reasons given by the respondent in his outline of submissions dated 30 April 2004 (pp 3 - 5), the applications should be refused, with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Weinberg and Crennan.
Associate: Dated: 5 May 2004 Solicitor for the Applicant: No appearance by the applicant
Solicitor for the Respondent: Australian Government Solicitor
Applicant M115 of 2003
Minister for Immigration & Multicultural & Indigenous Affairs
The decision of the primary Judge 23 His Honour said ([2003] FCA 1448 at [9] - [12]): 'The first question which arises under O 20 r 2 is whether there are reasonable grounds for contending that the applicant should be granted an extension of time in which to file his application [for prohibition]. I consider that it would be futile to grant the relief claimed against the first respondent. As Gray J said, in respect of a materially identical plea for relief in Re Batuwantudawa [2003] FCA 684 at [14]: "…the claim in the draft order nisi for prohibition is limited to the matter designated by its proceeding number in the Tribunal. The Tribunal has completed its dealing with that proceeding. There is nothing left to prohibit."
The next question which arises is whether there are reasonable grounds for contending that the applicant should be granted an extension of time in which to apply for certiorari. In that context it may be observed, as Gray J did in Batuwantudawa at [7], that no request is made for mandamus which might result in the redetermination of the application in the [Tribunal]. At [8] in Batuwantudawa Gray J said: "The time limited by the rules of the High Court for an application for certiorari is fixed by O 55 r 17 of those rules. An application must be made not later than six months after the date of the decision concerned. Of course, that is subject to the general power in O 60 r 6 of the High Court Rules to enlarge any of the time appointed by the rules. It falls to this Court to exercise that power of enlargement, if it is to be exercised, as a result of the remittal of the proceeding to this Court." In order to consider the request for dismissal under O 20 r 2 it would ordinarily be necessary to examine the reasons of the [Tribunal] to observe whether the alleged denial of procedural fairness may arguably be established. If that ground is arguably established it would ordinarily be in the interests of justice to extend time.' 24 Having analysed the Tribunal's reasons, the Judge said (at [18] - [21]): 'There is no indication in the reasons of the [Tribunal] that it gave the applicant an opportunity to comment on the country information before it made its decision. However, in the absence of any affidavit material from the applicant it is impossible to know whether it would have made any difference to his case if he had received prior notice of the country information referred to by the [Tribunal]. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs: Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502 at [37]: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." In Lam, the Chief Justice said at [38]: "No practical injustice has been shown. The applicant lost no opportunity to advance his case. … It has not been shown that there was procedural unfairness." See also per McHugh and Gummow JJ at [105] and [106], Hayne J at [115] and Callinan J at [149]. Similarly in this case the applicant has not shown what he would have said if the [Tribunal] had given him the country information to comment upon, assuming (without knowing) that it did fail to do so. The applicant said, in his oral submission today, that he is currently unable to get information from Sri Lanka. That is not the point. The issue is what he would have said to the [Tribunal] prior to its decision being given in 1997 or what he would have done if he had been shown the relevant country information before the [Tribunal's] decision.' 25 Accordingly, on 8 December 2003, the Judge dismissed (ex tempore) the application 'as disclosing no cause of action'.
(2002) 190 ALR 601
(2003) 195 ALR 502