Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684

REASONS FOR JUDGMENT 1 This proceeding was remitted to this Court from the High Court of Australia by order made on 7 February 2003. It was listed for a directions hearing before Marshall J on 24 April 2003. On that date, Mr Knowles, the solicitor who has appeared before me today for the respondents, also appeared. There was no appearance on behalf of the applicant. His Honour made orders for the filing and service of a court book by the first respondent and for the fixing of another directions hearing before the docket judge. His Honour also reserved the costs of that directions hearing. The matter was then placed in my docket and a directions hearing was fixed for today. 2 The solicitors for the respondents then forwarded to the Court consent orders signed by them on behalf of the respondents and by the applicant. In order to determine whether I should make the orders by consent I examined the file in the proceeding. I decided at that point not to make the consent orders and caused my associate to direct a letter to the applicant, informing her that I had decided not to make the orders. 3 The letter, which is dated 28 May 2003, informed the applicant that I would consider the question whether I would grant an enlargement of the time fixed for making of the application under the High Court Rules today, and would not be disposed to grant an enlargement of time unless it was clear to me there was a case on the merits. The letter invited the applicant to attend this directions hearing and to address the question of the merits of her proceeding. The applicant has failed to appear today. Mr Knowles has invited me to refuse to grant an enlargement of time on the basis that the proceeding has no chance of success, and to dismiss the proceeding here and now. 4 The proceeding was filed in the High Court on 19 July 2002. A number of documents were filed on that day. Among them was an affidavit, plainly drawn by or with the assistance of a legal practitioner, although the practitioner involved is not identified in that or any of the other documents. In the documents, the applicant applied for an extension of time. 5 The affidavit sets out the following timetable. On 30 June 1998, the applicant applied to the first respondent, the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, "the Minister"), for a visa of the kind known as a General (Residence) (Class AS) visa, subclass 805 ("a subclass 805 visa"). On 10 August 1998, a delegate of the Minister refused to grant that visa. The decision of the delegate was affirmed by a review officer from the Migration Internal Review Office on 8 September 1998. The applicant then applied to the Immigration Review Tribunal on 29 September 1998. Owing to changes in the legislation, that tribunal ceased to exist on 31 May 1999. The application for review was deemed to be an application properly made to the Migration Review Tribunal ("the Tribunal"), pursuant to s 41(1) of the Migration Legislation Amendment Act (No 1) 1998 (Cth). On 20 June 2000, the Tribunal, constituted by one of the second respondents to this proceeding (the other second respondent is the current Principal Member of the Tribunal), made a decision that the applicant did not meet the requirements for a subclass 805 visa. The reasons for decision of the Tribunal are annexed to the affidavit of the applicant. It can therefore be seen that more than two years elapsed before the applicant applied to the High Court. During that time, on 29 June 2000, the applicant requested the Minister to exercise his discretion in her favour under s 351 of the Migration Act 1958 (Cth) ("the Migration Act"). The Minister gave a decision on 8 July 2002, refusing to exercise that discretion. 6 Exhibited to the applicant's affidavit was a draft order nisi that she presented to the High Court, setting out the relief that she sought and the grounds on which it was sought. The relief sought was, first, a writ of prohibition directed to the Minister, prohibiting him from proceeding further with the proceeding in the Migration Review Tribunal and, second, a writ of certiorari, removing into the High Court to be quashed the decision made by the Tribunal on 20 June 2000 and the refusal of the Minister to exercise his discretion. The third respondent is the current Senior Member of the Tribunal. By reason of s 476(2) of the Migration Act, this Court has no jurisdiction in respect of a decision of the Minister under s 351 of the Migration Act. To the extent to which it related to that decision, the application could not have been remitted to this Court. I was informed by Mr Knowles that, by agreement between the parties, the applicant had abandoned the application, to the extent to which it sought relief in relation to the Minister's decision. 7 The challenge to the Tribunal's decision was said to be made on a number of grounds, which were stated in broad terms and without particulars. There was even an attempt to rely upon grounds in the now repealed Pt 8 of the Migration Act. There was a request for an enlargement of the time limited by the High Court Rules. Two things are notable about the draft order nisi. One is the absence of any request for mandamus that, if the applicant had succeeded, might have resulted in a redetermination of her application for the visa. The other is the attempt to prohibit the now completed proceeding in the Migration Review Tribunal.