Conclusion on extension of time
41 The grant of an extension of time is not automatic. The object of the rule extending time is to ensure that the rules that fix time do not themselves become instruments of injustice. This discretion to extend time is given for the sole purpose of doing justice between the parties. In order to determine whether the rules will work an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. The prospects of success in the substantive proposed proceeding is relevant: Gallo v Dawson (1990) 64 ALJR 458, Hughes v National Trustees Executives and Agency Co of Australasia Ltd [1978] VR 257.
42 In the present case the applicants brought their 1997 Federal Court proceeding within time. When the s 417 application was refused they proceeded reasonably promptly to file their application in the High Court. The critical delay was caused while they waited for the outcome of the s 417 application. As a matter of law there was no reason why that should have held up the filing of an application in the High Court. The terms of s 417 itself, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such application where other avenues of possible relief are available as of right.
43 There is no detail provided to support the assertion of severe financial hardship. The applicants have been living in Australia since 1996 so presumably have some means of support, but whether that is from employment, aid from their parents, or any other source is not disclosed. They have had legal representation in the 1997 Federal Court proceeding and in the High Court proceedings, both in that Court and on remitter, but whether or not that was provided by some form of legal aid or by payment from some private source, is not disclosed. It is not explained why legal representation or advice as to proceeding in the High Court was not available at other relevant times, and in particular at the stage when the 1997 Federal Court proceeding was abandoned.
44 So I do not think the proffered explanation for the applicants' delay is particularly persuasive. There remains moreover the question of their prospects of success. In this regard, there is something of a trade-off. Strong prospects of success might outweigh the negative effect of long delay, or delay for which there is little in the way of adequate explanation. And it must be kept in mind that in asylum cases the consequences of a wrong decision can have the most serious consequences for the individual.
45 There is perhaps some artificiality in speaking of prospects of success in a case like the present one where the issues are confined and I have been assisted by careful and comprehensive submissions of counsel on both sides. Indeed there has been no practical difference from the approach which would be taken at a final hearing where no question of extension of time was involved. Having heard full argument, I am satisfied that there is no substance in the applicants' cases.
46 Counsel agreed that the various grounds relied on could be encapsulated as
(i) actual bias, and
(ii) jurisdictional error in failing to give separate consideration to each applicant's claim.
47 However there first arises the contention by counsel for the Minister that the doctrines of res judicata and issue estoppel arising from the disposal of the 1997 Federal Court proceeding prevents the applicants from relying on ground (ii). As to ground (i), although actual bias was not raised in the Federal Court proceeding, counsel submitted it could have been and thus Anshun estoppel applies: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
48 The application of these doctrines in the context of judicial review is the subject of comprehensive discussion and analysis by Merkel J in Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677. I adopt his Honour's analysis. I note in particular his Honour's conclusions, well supported by authority, that the doctrines of res judicata and issue estoppel apply to applications for judicial review (at [43]), that orders by consent equally give rise to such pleas (at [35]), and that the question whether there is identity between the earlier cause of action and the ones raised in the proceeding said to be the subject of the plea is to be determined by matters of substance rather than the form of the particular proceeding or the way in which it is pleaded (at [52]).
49 In Somanader, as in the present case, the order of Hayne J remitted to the Federal Court that part of the matter in which the grounds for relief sought reflected grounds under the former Pt 8 of the Act, other grounds being adjourned to a date to be fixed. So the grounds relied upon before the Federal Court would be no wider than those able to be relied upon under Pt 8. Merkel J said (at [65]):
"Accordingly for the above reasons there is a commonality of the causes of action on the basis of each of the various tests discussed above. The substratum of facts giving rise to the right to review are exactly the same. The factual circumstances relied upon to establish the right to relief are the same. The substance of the two proceedings is the same. The right to relief in each case is informed by the same substantive law principles. It is not contended that the parties to the two sets of proceedings differ in any material respects. Thus, the dismissal orders finally determined the issue of whether the RRT committed an error amounting to a constructive failure to exercise jurisdiction or an error of law in the interpretation and application of the Convention in the present case."
50 That reasoning is applicable to the present case. The complaints now sought to be raised in the High Court proceedings as to the way the Tribunal took into account, in the case of each applicant, defects in the case of her sister, were squarely raised in the 1997 Federal Court proceeding.
51 As to ground (i), actual bias was an available ground under the former Pt 8: s 476(1)(f). In BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 at [24[-[30] the Full Court of this Court followed the view of the Full Court of the Supreme Court of Victoria in Port of Melbourne Authority v Anshun Pty Ltd (No 2) [1981] VR 81 at 89 that
"…the learned Judge, having once determined that the matter of the agreement properly belonged to the subject of the earlier litigation and might have been brought forward at the time of that litigation by the Authority, exercising reasonable diligence, had a discretion only in the sense that, although negligence, inadvertence or even accident would not suffice to excuse, he was required to consider whether special circumstances existed in the sense that justice required the non-application of the general rule (Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 at 590)."
52 In BC's Case the Full Court found that a combination of four circumstances amounted to special circumstances. These were that: (a) important issues of life and liberty were raised; (b) the Minister was not subjected to the costs and other pressures weighing on ordinary litigants; (c) the "complex bifurcated process of review"; and (d) in the state of authorities at the time it was "reasonable not to rely on jurisdictional unreasonableness". Their Honours (at [38]) thought that failure to raise jurisdictional unreasonableness was "excusable partly because the concept of jurisdictional unreasonableness had only quite recently been the subject of judicial exposition [presumably a reference to Yusuf's Case (2001) 180 ALR 1] and there was little guidance in the particular context of the Act"
53 In the present case no satisfactory basis for special circumstances in the Anshun sense could in my view be made out. The 1997 Federal Court proceeding was commenced by a considered, professionally prepared document, not just a pro forma repetition of the statutory grounds. The ground of actual bias, in marked contrast to the yet to be revealed ground of "jurisdictional unreasonableness", was then specifically provided for in the Act. The materials and arguments now sought to be relied on to prove actual bias were equally available to the lawyers who prepared the 1997 application. There is the further consideration that, as Burchett J said in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127, a finding of actual bias is
"…a grave matter, different in kind from a finding of mere error, or even wrong headedness, whether in law, logic or approach."
54 For the foregoing reasons, no extension of time should be granted. However, quite apart from the legal consequences of the disposition of the 1997 Federal Court proceeding, I am satisfied that the applicants' grounds are without merit.
55 As to actual bias, counsel did not rely on anything other than the reasons themselves. It may be possible to infer from the reasons for a decision that an accumulation of factual errors compels the conclusion that the decision-maker proceeded to consider the case from a preconceived opinion and fixed position so adverse to the person affected as to preclude a fair hearing: Sun at 133. But the present case is far removed. The central fact finding as to the family's visitor visa application was fatal. There could be no reviewable error in that finding, depending as it did on the acceptance of documents which appeared valid on their face and the rejection of highly implausible explanations. The reason the Tribunal decided against the applicants was not that it had any preconceived view but rather that their evidence was, in central respects, found to be untruthful.
56 As to jurisdictional error, the cases of the applicants were inextricably intertwined. This was recognised at every administrative and judicial level by everyone concerned, not least the applicants themselves and their advisors. There would have been no legal reason why the Tribunal could not have given the one set of reasons, as frequently happens when two or more members of the one family seek review by the Tribunal. In reality, each applicant was a witness for the other. A defect in the evidence of one must of necessity affected adversely the other's case.
Orders
57 The application for an order nisi for writs of mandamus, certiorari and prohibition and an injunction, insofar as it is based on grounds of review set out in pars 1, 3, 5, 6, 7, 8, 9 and 10 of the draft order nisi, being exhibit KPA-5 to the affidavit of K P Aravindan affirmed 21 August 1998, is dismissed. It is further ordered that the applicants pay the costs of the respondents in the Federal Court.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.