Rogers v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application by notice of motion for an extension of time within which to apply for relief in the nature of a writ of certiorari to quash a decision of the Migration Review Tribunal (the Tribunal) given on 22 September 1999, together with other relief. Under O 55 r 17 of the High Court Rules, the application to the High Court on 10 October 2002 is clearly very significantly out of time. 2 The circumstances in which the present application came to be remitted to this Court, the procedural and time limit considerations, and the relevant principles for the consideration of the present application are set out conveniently in the judgment of von Doussa J in Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567. I gratefully adopt them. There has been no submission that I should not do so.

3 The decision of the Tribunal was to affirm a decision of a delegate of the first respondent refusing to grant to the applicant a Change in Circumstance (Residence) (Class AG) visa. Counsel for the applicant in support of the application for an extension of time to apply to quash that decision has referred to two considerations. The first relates to the reasons why the application is made so belatedly - a little over three years after the Tribunal's decision - and, secondly, to the merits of the application - that is, as to the prospects of the applicant succeeding if the extension of time is granted. 4 As to the first matter, there are two submissions made. It is apparent that the applicant, following the Tribunal's decision, made a submission to the first respondent under s 351 of the Migration Act 1958 (Cth) (the Act) requesting him to substitute a more favourable decision on her application for the visa than that made by the Tribunal. It is unclear exactly when the application under s 351 was made, but it was determined and notified to the applicant on 9 October 2002. She promptly instituted proceedings in the High Court. 5 In the absence of any evidence from the applicant that she understood the application under s 351 to be a sequential step in proceedings of the present nature so that time was not running against her, I do not think the application under s 351 is itself any real excuse for failing to institute the present application within the time permitted by the rules. It is an independent application, not made to the Court. It is unrelated to the present application. The applicant has not deposed to any understanding on her part to the contrary. 6 Moreover, the fact that the application was made under s 351 might, in the absence of any further attempt then to judicially review the Tribunal's decision, tend to indicate that the applicant did not perceive at that time jurisdictional error on the part of the Tribunal. However, I do not take that step in the present circumstances because in fact, following the Tribunal's decision, the applicant applied for judicial review of the Tribunal's decision to this Court. That application was dismissed by consent on 30 March 2000. There was then a period of about two and a half years before the present application was instituted. 7 For the reasons pointed out by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte 'A' 185 ALR 489 at 496, pars [33] and [34] in my judgment the delay at least to 30 March 2000 is understandable and is not a delay which I put in the scales adverse to the exercise of a discretion on the present application. In the absence of any evidence from the applicant explaining that she believed her application under s 351 then justified her in not taking further judicial proceedings of the present nature, I think her delay thereafter does call for some explanation and that no satisfactory explanation is given. However, in the scales of this matter and having regard to the nature of the visa which she sought and the consequences to her of its refusal, it is only of marginal significance. 8 It is more important to determine whether there is any prospect of the application succeeding if an extension of time is granted. The applicant complains that she was not accorded procedural fairness. If that were so, in my view it would provide a ground upon which the Tribunal could be shown to have exceeded its jurisdiction and its decision may have been quashed: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. 9 The particular breach of the rules of procedural fairness of which the applicant complains is that she was not given an opportunity to be heard by the Tribunal. In my judgment, there is simply no prospect of that being shown. The Tribunal decision records that a hearing of her application was set down for 10 am on 1 September 1999 and that the applicant failed to attend that hearing. There is nothing to indicate that the applicant was not notified of the hearing, or that she had some excuse for not attending the hearing, or that she subsequently communicated with the Tribunal in such circumstances as might have obliged it to give her a further opportunity to be heard on her application. The circumstances simply show that she did not attend the hearing when she was given the opportunity to do so. Her affidavit does not provide any information inconsistent with that conclusion, which I draw on the basis of the Tribunal's decision. 10 Accordingly, in my judgment, there is simply no chance of the applicant succeeding on this application on the ground she has identified, even if an extension of time is granted. In those circumstances, in my view it is appropriate to refuse to grant the extension of time which is sought. I make the following orders: