Gallo v Dawson

REASONS FOR JUDGMENT 1 On or about 19 July 2002 the applicants, husband and wife, filed an affidavit and draft order nisi in the High Court, which order was amended by leave granted on 24 January 2003, seeking the issue of a writ of prohibition against the Minister for Immigration & Multicultural Affairs as he was then known ("the Minister") and the Immigration Review Tribunal, now the Migration Review Tribunal ("the Tribunal"), and a writ of certiorari against the Tribunal in relation to the quashing of a decision of the Tribunal made on 14 May 1999 affirming the decision of a delegate of the Minister to refuse the grant of a Change in Circumstance (Residence) (Class AG) visa. 2 On 24 January 2003 the High Court remitted the matter to the Federal Court. As the decision of the Tribunal was made more than six months before the application was made to the High Court, the applicants required an order for an enlargement of time within which to make their application for a writ of certiorari. Order 55 r 17(1) of the High Court Rules provides that: "An order nisi for a writ of certiorari to remove a judgment, order, conviction or other proceeding, for the purpose of its being quashed, of an inferior court or tribunal, or of a magistrate or justices, shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be prescribed by any law." The High Court and this Court can enlarge that time under O 60 r 6 of the High Court Rules. The applicants sought an extension of time in the papers filed in the High Court and it is necessary to consider that application as the threshold question in the matter which was set down for hearing this day. The Minister has also filed a notice of motion in which he seeks orders pursuant to O 20 r 2 of the Federal Court Rules that the application for an order nisi for writs of prohibition and certiorari be dismissed as no reasonable basis for the application is disclosed. 3 The background to this proceeding is as follows. The applicants, citizens of Fiji, arrived in Australia on 5 May 1996 with their two young children. At that time the applicants held a Class TR, subclass 676, tourist (short stay) visa which was valid until 5 August 1996. On 30 May 1996 the first applicant, Mr Lal, applied for a subclass 866, protection visa and his wife and two children were included in the application. That application was refused on 30 May 1997. Mr Lal applied for a review of that decision. On 25 March 1998 the Refugee Review Tribunal affirmed the decision to refuse the grant of the protection visa. 4 On 14 May 1998 the applicants requested the Minister to exercise his discretion to substitute a more favourable decision under s 417 of the Migration Act 1958 (Cth) ("the Act"), in respect of the decision by the Refugee Review Tribunal. The Minister refused this request on 4 August 1998 and his decision was notified to the applicants by letter dated 6 August 1998. On 8 September 1998 Mr Lal applied for a Change in Circumstance (Residence) (Class AG) visa, in which application he claimed to be a special need relative of a person he described as his uncle. Mr Lal's wife and two children were included in the application. Mr Lal's uncle was then and is now an Australian permanent resident. On 8 January 1999 a delegate of the Minister refused the application for that visa. 5 On 3 February 1999 the applicants and their children applied to the Tribunal to review the delegate's decision. On 18 May 1999 the Tribunal affirmed the decision of the delegate not to grant visas to Mr Lal, his wife and two children. On 15 June 1999 Mr Lal lodged a further application for a Change in Circumstance (Residence) (Class AG), subclass 806 visa, on the basis of being a carer to his uncle, the same nominator as in the earlier application. Mrs Lal and the children were also included in the application. The application was refused by a delegate of the Minister and, on review, by the Tribunal, on the grounds that the applicants failed to satisfy criterion 3002 of Sch 3 and consequently failed to satisfy what was then cl 806.212 of Sch 2 to the Migration Regulations 1994 (Cth). 6 On 8 August 2000 Mr Lal requested the Minister to exercise his discretion to substitute a more favourable decision under s 351 of the Act in respect of the decision by the Tribunal. The Minister refused this request on 3 July 2002 and his decision was notified to the applicants by letter dated 11 July 2002. It was eight days later that they lodged their application with the High Court seeking an order nisi for writs of certiorari and prohibition. 7 In the Tribunal's decision the Tribunal noted that in order to be granted a visa under the Migration Regulations 1994 (Cth) the applicants were required to satisfy all the criteria for the grant of the visa. The applicants last held substantive visas on 3 August 1996 when their subclass 676 visas expired and since that time they have held various bridging visas. In order to satisfy the relevant criterion the applicants were required to lodge the visa application within twelve months of ceasing to hold substantive visas. However, in the events which occurred the visa application was not lodged until 8 September 1998. 8 Having set out all the relevant statutory and regulatory provisions which were relevant to the application the Tribunal then reasoned as follows: "The Tribunal finds the applicants at the time of the application were not eligible to be considered as being a remaining relative, or an aged dependent relative of an Australian citizen or permanent resident, as defined in the Regulations as the fee paid for the application was $650. The Tribunal finds the applicants at the time of the application were not such a relative even had they had [sic] applied accordingly. Neither are the applicants Orphaned Relatives. It was claimed the applicant was a "special need relative" of her [sic] uncle. The Tribunal finds that the applicants ceased to hold a substantive visas after 1 September 1994, when their tourist sub‑class 676 Visas, subclass 435 expired on 3 August 1996. They have not held Substantive visas since that date. The Tribunal finds that the application for the Change in Circumstances (Residence) (Class AG) visa was validly lodged on 8 September 1998. As the applicants did not lodge the application for the Change in Circumstances (Residence) (Class AG) visa within 12 months of ceasing to hold a substantive visas, the Tribunal finds the requirements of clause 3002 of Schedule 3 are not satisfied and accordingly clause 806.212 of the Regulations is not satisfied by the applicants. The applicants cannot satisfy all of the requirements for the visas sought. The Tribunal finds that as all the criteria are not satisfied the applicants are not eligible for the grant of the visas. The Tribunal from the evidence and material before it finds that the applicants are unable to be considered for any of the other Subclasses of visa as set out in item 1107 of Schedule 1 of the Regulations." Accordingly the Tribunal affirmed the decision under review. 9 With that background I turn to the issues before the Court. In relation to the application for the writ of certiorari there is the threshold question to be resolved, namely whether the applicants should be granted an extension of time within which to bring their application for the writ of certiorari. If time is not extended then that is in substance the end of the proceeding, if there is no basis thereafter for the grant of a writ of prohibition. The thrust of the applicants' complaint is the decision of the Tribunal, which they wish to quash, set aside or set at nought. 10 The applicants gave no reason for their delay in bringing the proceeding before the High Court other than that Mr Lal said that he was doing a course relating to automotive mechanics. Part of the delay may be attributed to his request to the Minister to exercise his discretion to substitute a more favourable decision under s 351 of the Act in respect of the decision by the Tribunal, which request was made on 8 August 2000 and was refused by letter dated 11 July 2002. It would appear to be implicit in the request to the Minister to exercise his discretion that, at the time of the request, Mr Lal had accepted the Tribunal's decision. 11 The grant of an extension of time is a matter requiring the exercise of a discretion committed to the Court. The grant of an extension of time is not automatically granted on application: Gallo v Dawson (1990) 93 ALR 479 at 480; Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495. There are a number of factors which the Court may take into account in determining whether an extension of time to apply for a writ of certiorari should be granted. These factors include the explanation and reason for the delay in applying for the writ, whether any party may be prejudiced if the extension of time is granted, and the applicant's prospects of success in obtaining a grant of an order absolute for the issue of the writ of certiorari. 12 Other factors which should be taken into account include a recognition of the fact that there should be an end to litigation and that there is a need and desirability for doing justice between the parties. These principles were usefully explained by McHugh J in Re Commonwealth of Australia; Ex parte Marks (supra) at 495 where his Honour said: "An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this court." [footnotes omitted] 13 The applicants have given no explanation for their delay in applying for the writ of certiorari other than the statement by Mr Lal that he was undertaking the course to which I have referred. The observation of McHugh J in Re Commonwealth of Australia; Ex parte Marks (supra) at 495‑496 is relevant in this context. His Honour said: "Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, '[t]he rules of court must prima facie be obeyed'. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this court can be brought against the judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court." [footnotes omitted] 14 What occurred in this case after the decision of the Tribunal was given on 18 May 1999 was that the applicants took other steps for the purpose of remaining in Australia. I am prepared to infer, as I have noted earlier, that part of the reason for the delay was not just the course which Mr Lal was undertaking but also the fact that the applicants were seeking alternative avenues for the obtaining of visas to give them the opportunity to remain in Australia. No other reasons for the delay have emerged. I consider that the reason given by Mr Lal and the reason in respect of which I have drawn an inference do not constitute special circumstances: cf: Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at [9]; Re Batuwantudawa [2003] FCA 684 at [9]. 15 The Tribunal's decision was given on 18 May 1999, more than three years prior to the date on which the application for the order nisi was filed in the High Court. In their written submissions filed with the Court the applicants did not seek to explain the delay in applying to the High Court but rather explained that they had been in Australia since May 1996 and that their children know only the Australian way of life. The applicants pointed out in their written submissions that their children would have difficulties adjusting to the Fijian way of life if they were required to leave Australia. They also raised monetary considerations in respect of the cost involved in returning to Fiji and then applying in Fiji to migrate to Australia. They concluded their written submissions by submitting that due to their financial hardship they have requested an extension of time. 16 One may sympathise with the feelings and expressions found in the applicants' submissions but they do not, according to well‑established principles, constitute, in my view, special circumstances which would warrant the granting of an extension of time. However, I consider there is a further basis upon which the application for the extension of time should be refused and that is that in my view the applicants have no prospects of success in seeking a writ of certiorari to set aside or quash the decision of the Tribunal or in seeking a writ of prohibition against the Minister prohibiting him from proceeding further with the matter which was in the Tribunal and which was the subject of the Tribunal's decision on 18 May 1999. 17 The decision of the Tribunal was a privative clause decision within s 474 of the Act, as the application to the High Court was made after the enactment of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which came into operation on 2 October 2001. I do not consider there is any basis for an assertion or submission that there was a jurisdictional error or a denial of natural justice such as to enable the applicants to commence a proceeding, notwithstanding that the decision was a privative clause decision. Although the decision of the Tribunal was made on 18 May 1999, prior to the enactment of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), it is still a privative clause decision because of the relevant transitional provisions: see sub‑item (8)(2) of Sch 1 to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). 18 The applicants represented themselves and did not have the benefit of legal advice for the purpose of the application before me. I invited the applicants to tell me what were the grounds upon which the Tribunal had made an error. They were unable to do so. In my view the Tribunal did not fall into any error of law or any other error which might warrant a consideration that the decision should be set aside. The Tribunal found that the requirements of cl 3002 of Sch 3 were not satisfied and that accordingly cl 806.212 of Sch 2 of the Migration Regulations 1994 (Cth) was not satisfied. Put shortly, the applicants could not satisfy all the requirements for the visas sought. 19 The Tribunal found that, as all the criteria were not satisfied, the applicants were not eligible for the grant of the visas sought. In my view, that finding of the Tribunal is unassailable and the Tribunal committed no error in reaching that conclusion. In those circumstances, even if the extension of time for filing the application in the High Court were to be granted, the application for a writ of certiorari would still be dismissed on the merits. 20 I reach the same conclusion in relation to the application for a writ of prohibition. The order nisi set out in the draft order submitted to the Court was that the Minister and the Tribunal show cause why a writ of prohibition should not be issued directed to the Minister prohibiting the Minister from proceeding further with the matter in the Tribunal. An interesting question arises as to whether there is any basis independently for the writ of prohibition having regard to my finding that there is no basis for the writ of certiorari. The Tribunal had handed down its decision and there were no further steps for the Tribunal to take. In any event, I do not consider that I need to investigate this matter further because I am quite satisfied that there are no grounds established which would warrant the grant of a writ of prohibition. The Tribunal acted quite properly and committed no error of law. 21 It follows, using the words of O 20 r 2(1)(a) of the Federal Court Rules, as construed by O 54B r 5, that no reasonable basis for the application is disclosed by the application for the writs of prohibition and certiorari. In those circumstances the Minister is entitled to the orders sought in the motion, namely that the application for those writs be dismissed. 22 The order of the Court will be: (1) The application by the applicants for writs of prohibition and certiorari be dismissed. (2) The applicants pay the respondents' costs of and incidental to the application.