Consideration and determination
7 The relevant principles guiding the Court's consideration of an application for extension of time and leave to appeal are well settled. The applicant needs to provide an acceptable explanation for the delay in commencing the proceedings. The strength of the proposed grounds of appeal is another relevant matter, not only in relation to the application for an extension of time, but also in connection with a related application for leave to appeal (see Décor Corporation Pty Limited v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399 and BTM15 v Minister for Immigration and Border Protection [2016] FCA 888 at [19]).
8 As to the first of those matters, the delay in seeking leave to appeal is almost nine years, which is an unusually long period of time. The only explanation offered by the applicant was that he was awaiting the outcome of a decision on his request for Ministerial intervention. In his affidavit dated 25 October 2016 in support of his extension of time, the applicant said that his appeal was out of time because "my application was pending before the Minister". He then stated that he would provide more details later.
9 This explanation has been rejected in other cases, even where the delay is not as long as that here (see, for example, MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426 at [4] per Davies J), however, each case will necessarily turn on its own facts. In other cases, the decision to seek Ministerial intervention has been regarded as not being consistent with an intention to pursue appeal rights and contest the correctness of the decision of the FCCA (see Vella v Minister for Immigration and Border Protection [2015] HCA 42, and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 at [24]). In his affidavit, the applicant did not provide an adequate explanation for the very lengthy delay here. Given his status as a litigant in person, I asked him to elaborate upon his affidavit. Through his interpreter, he said that he had sought Ministerial intervention three times and had hoped to get a positive decision from those requests.
10 In the light of the above, I do not accept that the applicant has provided an adequate explanation for the lengthy delay in bringing this proceeding. It may be inferred from the fact that he sought Ministerial intervention on three separate occasions during the nine year period since Judge Cameron published his judgment that the applicant elected to take a cause of action which is inconsistent with an intention to pursue his appeal rights. That is sufficient to dispose of his application but, for completeness, I will now address the issue of the strength of the proposed grounds of appeal.
11 It is notable that each of the three grounds is expressed at a high level of generality. The essence of ground 1 appears to be that Judge Cameron erred by not finding that the Refugee Review Tribunal (RRT) erred in failing to find any evidence in relation to the applicant's claims for protection. Putting to one side the difficulty in understanding this proposed ground, the fundamental difficulty with it is that the RRT concluded that it did not have jurisdiction to entertain the applicant's application for review, thus ground 1 is meaningless.
12 As to ground 2, the applicant did not identify the "recent High Court reported decision" to which this ground relates. Accordingly, the strength of this proposed ground cannot be assessed. Nothing in the applicant's brief outline of written submissions advanced the matter any further.
13 As to ground 3, which claims that the RRT did not follow the proper procedure in arriving at its decision dated 13 December 2007, which decision was to the effect that the RRT lacked jurisdiction, this appears to be a reference to [13] of Judge Cameron's reasons for judgment. His Honour referred there to the fact that the RRT did not invite the applicant to appear before it when it made its decision on 12 December 2007 that it lacked jurisdiction. Judge Cameron reasoned that the procedural requirements codified in the Migration Act 1958 (Cth) (the Act) were predicated on the RRT having jurisdiction. Further, his Honour reasoned that the RRT did not have jurisdiction because it was functus officio. Accordingly, his Honour concluded that the RRT was not obliged to invite the applicant to appear before it.
14 This appears to suggest that the codified procedures in the Act as it stood in December 2007 had no application where the RRT lacked jurisdiction to entertain an application for review and the RRT could dismiss the application without hearing from the applicant. This view is contestable and, if viewed in isolation, this may have warranted time being extended and a grant of leave to appeal if I was satisfied that the strength of the ground outweighed the delay.
15 However, the matter is not so straightforward. That is because the then Federal Magistrate found that, regardless of whether the applicant had an arguable case in his judicial review application, the application was an abuse of process because the applicant had made a second application to the RRT for a review of the delegate's decision (see the background of the matters identified in the chronology set out in [8] of Judge Cameron's reasons for judgment). The basis for the RRT's ruling on 12 December 2007 that it was functus officio and lacked jurisdiction was as follows. The RRT had previously affirmed the delegate's decision on 11 April 2003 and after various unsuccessful attempts to have that decision set aside on judicial review, which involved various Courts in the judicial hierarchy, the applicant proceeded on 13 November 2007 to make a further application to the RRT to review the delegate's decision. Judge Cameron applied Moore J's decision in SZASP v Minister for Immigration and Citizenship [2007] FCA 771, which held that, in such circumstances, it was correct for the RRT to find that it lacked jurisdiction. Justice Moore found that conduct involving a second attempt to review the same decision amounted to an abuse of the Court's process. Judge Cameron took a similar view. In my opinion it was reasonably open for him to do so.
16 The applicant does not complain that he was denied procedural fairness in the proceeding before Judge Cameron. It would appear that he had a reasonable opportunity to address his Honour on the issue of abuse of process. The abuse of process ground provides an independent basis for Judge Cameron's decision. Even if the applicant has an arguable case in respect of his claim that he was denied procedural fairness by the RRT, Judge Cameron's finding that his review application before the RRT was an abuse of process stands as an independent basis for the decision to dismiss his judicial review application. It is notable that the applicant does not seek to challenge this aspect of Judge Cameron's decision.
17 There is a claim in the applicant's written outline of submissions that there was "actual bias" on the part of the RRT. The only matters upon which that serious allegation is made are the claims that the RRT had ignored relevant evidence and made findings in the face of contradicting evidence. Neither of these matters provides a proper basis for such a serious allegation which, objectively viewed, amounts to nothing more than a complaint by the applicant that his case was unsuccessful before the RRT. As I have emphasised above, the RRT did not hear and determine the substance of the applicant's review application because it found that it lacked jurisdiction to do so.