Applicant S70 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 On 18 July 2002 the Refugee Review Tribunal ('the RRT') handed down a decision, which it made on 26 June 2002, affirming a decision of the Minister's delegate not to grant the applicant a protection visa. On 6 August 2002 the applicant made an application to the Minister for the exercise of the Minister's powers pursuant to s 417 of the Migration Act 1958 (Cth) ('the Act'). By letter dated 14 February 2002, which came to the applicant's attention on 22 February 2002, the Minister notified the applicant that he had decided not to intervene. 2 On 28 February 2003 the applicant instituted proceedings in the High Court of Australia against the Minister, the Member who gave the decision and the Principal Member of the RRT. A draft order nisi was lodged with the High Court which called on the respondents to show cause why a writ of mandamus, a writ of prohibition and a writ of certiorari should not issue as follows: · a writ of prohibition directed to the Minister prohibiting him or his agents or delegates from acting upon, giving effect to, proceeding further upon, or enforcing, the RRT's decision; · a writ of certiorari directed to the RRT Member removing the RRT Member's decision to the Court to be quashed; · a writ of mandamus directed to the Principal Member of the RRT requiring him to appoint a member of the RRT other than the second respondent to rehear and determine the application for a protection visa according to law. 3 On 6 June 2003 Justice Heydon made consent orders remitting the further proceedings in the application to the Federal Court of Australia and ordering that the application proceed in the Federal Court as if the steps already taken in the application in the High Court had been taken in the Federal Court. 4 Order 55 r 17 and Order 55 r 30 of the High Court Rules impose time limits within which an application for a writ of certiorari, or an application for a writ of mandamus must be made. No time limitation is imposed by the rules in relation to a writ of prohibition. In the present case, the application insofar as it sought a writ of certiorari and a writ of mandamus was lodged outside the times specified in the High Court Rules, although Order 60 r 4 enables the times appointed by the Rules to be enlarged. The proposition that the application is out of time may require a qualification in relation to the application for a writ of mandamus as the time limitation imposed by Order 55 r 30 only applies if the writ relates to a 'judicial tribunal'. In the applicant's submission, the RRT is not a judicial tribunal. In view of the conclusion which I have reached, it is not necessary for me to decide that question, although in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 at [12], [49] and [102] it was assumed by the High Court that the RRT is such a body:. 5 The orders made by the High Court do not obviate the need for an extension of time within which to seek a writ of certiorari, nor do they obviate the need to seek an extension of time within which to seek a writ of mandamus if the view be taken that Order 55 r 30 applies in relation to the Refugee Review Tribunal: Applicant A64 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1142. 6 When this matter came before me for directions, the Minister contended that unless an order extending time was made, these proceedings were doomed to failure. Accordingly, I made an order by consent on 13 October 2003 requiring the applicant to file a motion seeking an extension of time on or before a date which I fixed, and I gave some incidental directions for the hearing of that motion. A Notice of Motion seeking an extension of time for the commencement of the proceedings was filed on 24 October 2003 and it is that motion which I have before me for consideration. 7 It is now apparent to me that the course which I adopted at the instigation of the Minister was misconceived. That is because in Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA1054 Merkel J held that it would be erroneous to dismiss a proceeding in which prohibition is properly being sought against the Minister on the ground that writs of mandamus and certiorari, which are also being sought, are out of time. His Honour observed that if prohibition is granted, the granting of mandamus and certiorari may well be in the interests of all of the parties as that relief would reflect the true legal position in respect of the impugned decision. 8 That raises for consideration the question whether prohibition is properly being sought against the Minister. I was informed that the applicant was issued with a bridging visa which expires 28 days after the RRT's decision, although I do not have the precise terms on which the bridging visa was issued before me. On the expiry of the bridging visa the applicant becomes an unlawful non-citizen (s 14 of the Act) who must be detained by a departmental officer under s 189 of the Act, and removed from Australia under s 198 of the Act. 9 In the Minister's submission, these consequences flow by force of the Act. The Minister and the departmental officers are not doing anything illegal in acting in obedience to the requirements of the Act in this respect. Prohibition is therefore not a relevant remedy. The Minister places reliance on the decision of McHugh J in Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 at [23] - [25] and [27], which was not referred to by Merkel J in Thayananthan (supra). 10 In the applicant's submission prohibition is properly sought against the Minister inasmuch as the steps which it may be inferred are proposed to be taken against the applicant assume the validity of the RRT's decision. Merkel J squarely addressed this question in Thayananthan (supra). At [24] his Honour said: 'In the event that the decision of the Tribunal is found by the Court to be invalid, absent any discretionary reason for not doing so, a writ of prohibition could be expected to issue under s 75(v) to prohibit the Minister, and his officers, from acting upon or giving effect to the invalid decision. Prohibition would be an appropriate remedy because it would prohibit the Minister and his officers from relying on the Tribunal's decision, which is regarded in law as "no decision at all" (see Plaintiff S157 at 45 [76]), as a basis for the removal of the applicants from Australia irrespective of whether mandamus or certiorari is also granted.' 11 The Minister submitted that I should not follow the decision of Merkel J upon the basis that it is said to be obviously wrong. Merkel J, in his reasons for decision, refers to earlier decisions of judges of this Court which appear to have proceeded upon a different basis, but his Honour invokes High Court authority and in particular, the decision in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 as supporting his contrary conclusion. In Applicant A64 of 2002 (supra) Mansfield J proceeded upon the basis that even though applications for writs of certiorari and mandamus might be out of time, the applicant could nonetheless prosecute the application to the extent to which it seeks prohibition. His Honour did not refer to any authorities on the question. However, in Applicant M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146 Goldberg J specifically followed the decision of Merkel J in Thayananthan (supra). 12 The decision of Merkel J is a carefully considered recent decision which is directly in point and which has been followed by Goldberg J. The importance of consistency in judicial decision-making to the administration of justice was referred to in the recent decisions of French J in Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75] and in Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1263 at [52]. I should follow the decision of Merkel J unless satisfied that it is obviously wrong. I am not so satisfied even though there may be scope for differences of opinion upon the question. 13 In M162 of 2002 (supra) Goldberg J observed at [38] that it is premature to consider an application for an extension of time within which to file the applications for writs of certiorari and mandamus before the application for a writ of prohibition came on for hearing. At [40] Goldberg J held that where an application is made which includes an application for the issue of a writ of prohibition and a writ of certiorari and a writ of mandamus, it would not be an appropriate exercise of the Court's discretion to consider whether an extension of time should be granted to apply for the writs of certiorari and mandamus and otherwise to dispose of the part of the application relating to those writs unless the Court was able at the same time to determine and dispose of the application for the writ of prohibition. His Honour therefore adjourned the application for an extension of time in which to make an application for writs of certiorari and mandamus to the hearing of the substantive application before the Court. 14 There has been some argument on the present motion as to whether the applicants have demonstrated a sufficiently arguable claim to justify an extension of time. However, there is no motion before me for summary dismissal of the applicant's claims. Accordingly, I consider that I should adopt the same course as that adopted by Goldberg J in M162 of 2002 (supra). I make no order on the application for an extension of time except to direct that the motion stand over until the hearing of the substantive application. The costs of the motion should be reserved. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.