Applicants A206 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 to the High Court for relief in the nature of a writ of certiorari to quash a decision of the Refugee Review Tribunal (the Tribunal) given on 29 June 2001 and for associated orders. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicants protection visas for which they had applied under the Migration Act 1958 (Cth) (the Act). 2 The relevant procedural rules and principles to be applied on an application such as the present are discussed in the reasons for judgment of von Doussa J in Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567, and I will not repeat them. Counsel did not contend that his Honour did not accurately and sufficiently comprehensively set out those principles in that decision. 3 Counsel for the applicants addressed two issues which, he contended, were relevant to the exercise of the discretion which is available under O 60, r 6 of the High Court Rules to extend time to institute proceedings. The first related to the delay in the institution of proceedings; the second to the merits of the application. 4 As to the delay, I note that the applicants were notified of the Tribunal's decision on 20 July 2001 and that the application in the High Court was not instituted until 6 September 2002, a little over 12 months later. The applicant husband says that following the Tribunal's decision he instructed his migration agent to apply to the first respondent under s 417 of the Act to substitute a more favourable decision than that of the Tribunal with respect to the visa applications and that he did not receive a response from the Minister until June 2002 when that application was refused. 5 I am not satisfied that is a satisfactory explanation for the delay, because there is nothing to indicate that the applicants understood that the application under s 417 was a step in the proceedings in the sense of putting in abeyance the time restrictions which might have applied under O 55 rr 17 and 30 of the High Court Rules. The applicants do not depose to believing that, by applying under s 417 of the Act to the first respondent, those time limitations did not apply to them. Moreover, the fact that they applied to the first respondent under s 417 in the circumstances might be taken as an acceptance by the applicants at that time that the Tribunal's decision was not made through error of a jurisdictional nature on its part. However, given the significance of the nature of the present application, I do not propose to weigh the delay in this instance in the scales adverse to the exercise of the discretion whether or not to extend time. 6 In my view, it is relevant for the applicants to show that they have some prospect of succeeding on the application if the extension of time is granted. If there is no prospect of success at all shown on the material on the present motion, in my view the appropriate order is to refuse the extension of time sought. 7 Counsel for the applicants contended that there was jurisdictional error on the part of the Tribunal in the making of its decision because it did not accord to the applicants procedural fairness. In particular, it was contended that the Tribunal took into account material adverse to the applicants as part of its findings and reasons, without giving the applicants notice of that material and the opportunity to address it. 8 The applicants are husband, wife and their two sons. They are Fijians of Indian ethnicity. The Tribunal accepted that during, and for some time following, the coup which occurred in Fiji on 19 May 2000, Fijians of Indian ethnicity were vulnerable to significant mistreatment at the hands of indigenous Fijians and that therefore the applicants genuinely feared they would be mistreated by indigenous Fijians because of their Indian ethnicity if they were, at that time, to have returned to Fiji. It also accepted that at about the time of the coup and for a little time afterwards the violence perpetrated by indigenous Fijians against Indo‑Fijians was not effectively controlled by the Fijian authorities. Consequently, the Tribunal accepted that the Fijian authorities were unable or unwilling to provide effective protection to Indo‑Fijians against indigenous Fijians in May 2000 and for several months thereafter. 9 However, the applications for protection visas failed because the Tribunal found that by about December 2000 the authorities had effectively restored to Fiji a condition of security and the government then in force had publicly committed itself to maintaining public order and protecting the human rights of all Fijian citizens, including Indo‑Fijians. The Tribunal found that the applicants were able to obtain adequate and effective protection in Fiji at the time of its decision and in the foreseeable future, having regard to independent country information to which it referred about that change in circumstances in Fiji from the latter part of 2000. 10 The applicants complain that they were not given notice of the independent country information to which the Tribunal referred in reaching that view, nor did they have an opportunity to address it. Counsel for the respondents pointed out that s 424A of the Act does not oblige the Tribunal to have drawn to the attention of the applicants that material or to have given the applicants the opportunity to address it. However, counsel for the respondents accepted that, as a result of the decisions of the High Court, for instance, in Re Refugee Review Tribunal: Ex Parte Aala (2000) 204 CLR 82 and in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, it is clearly arguable that the applicants were entitled to be notified of such adverse country material and to be given an opportunity to address it to ensure that they were accorded common law procedural fairness. 11 In my view, however, the applicants have simply failed to demonstrate that they have any prospect of making out, on the review of this application, the critical fact which is asserted in the contentions put on their behalf - that is that the independent country information upon which the Tribunal relied in reaching its view as to the state of affairs in Fiji at the time of its decision was not notified to the applicants and that the applicants were not given the opportunity to address it. There is nothing before me upon which the applicants could make out those facts. 12 The independent country information to which the Tribunal referred in its reasons for decision is clearly identified. It is sourced by reference to documents which existed up to April 2001. The Tribunal conducted a hearing, at which the applicant husband was present, on 7 June 2001. There is nothing to indicate that the Tribunal had regard to any independent country information which came to its notice after the date of the hearing. There is nothing to indicate that the Tribunal did not raise with the applicant husband and discuss with him the independent country information to which it had access, as I have said, from sources up to April 2001. 13 Consequently, in my judgment, there is no prospect on the material before me of the applicants demonstrating that the material to which the Tribunal had regard in reaching its decision was not notified to the applicants or that they did not have the opportunity to address it. It would have been very easy for the applicants, if it were the fact, to have deposed to such matters. The affidavit of the applicant husband, in support of the motion, makes no such claim and, indeed, refers not at all to the course of the hearing. There is not even a general complaint in the affidavit of any facts which might enliven the general proposition for which counsel contended - namely, that adverse material was taken into account by the Tribunal as part of its findings and reasons, but that the applicants were not given notice of that material or the opportunity to address it. 14 In those circumstances, in my view the applicants simply have no prospect of succeeding on the application, even if the extension of time is granted. I propose to make the following orders: