Delay
11 At the outset, one must say that the explanation is unimpressive. The delay was in no sense caused by anyone but the applicant himself. The applicant descended into no detail in relation to his formerly allegedly poor, financial position. Many indigent applicants have appeared in person in this Court and in the High Court. By March 1998, it was common in Sydney as elsewhere for rejected applicants for refugee status, many of them Bangladeshis, to approach the Court for waiver of fees, which requests were very commonly granted. That position has continued since 1998. The applicant, by his own account to the Tribunal, is a tertiary-educated person who was a political leader. In New South Wales generally, and in connection with proceedings in this Court, there has been, during the period of the applicant's delay, no difficulty in arranging competent, free, interpreting assistance if the applicant had difficulty with the English language. The applicant does not say he had no English-speaking friend and that appears unlikely. The applicant does not say he received no legal or other relevant advice from a knowledgeable source after the Tribunal's decision nor, if he did not, why.
12 Further, it appears that the applicant wrote to the Minister on 31 July 1998 and again on 20 August 1998 requesting that the Minister consider exercising his discretion under s 417 of the Migration Act 1958 (Cth) ('the Act') to substitute a more favourable decision than that of the Tribunal. The Minister made it finally clear by letter of 29 October 1998 that he would not consider doing so. It can be safely inferred that, in writing to the Minister four months after the Tribunal's decision, the applicant had formed the view that the Tribunal's decision was legally unchallengeable. That is of further significance because, whereas Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 ('S157') may have said something about time limits, nothing in the Act before the enactment of the Migration Legislation Amendments (Judicial Review) Act 2001 (No. 134, 2001), which took effect on 27 September 2001, ever purported to limit, by way of time limits or otherwise, the jurisdiction of the High Court to issue constitutional writs, and neither the High Court Rules nor anything else ever limited, as a matter of law, the time within which a writ of prohibition might be sought from the High Court. In 1998, as now, alleged denial of natural justice might have founded the issue of one or more such writs by the High Court. The applicant essentially alleges such a denial, putting his case in two ways, according to his particulars.
13 All that the decision in S157 did, when pronounced on 4 February 2003, was to construe s 474 in a limited way so as not to permit it to immunise decisions such as the Tribunal's against judicial review for jurisdictional error, including a denial of natural justice. So there was not even an apparent legal impediment until September 2001, three and a half years after the Tribunal's decision, to the applicant's ability to seek the issue of a writ of prohibition by the High Court.
14 A line of authority in this Court has it that, upon remitter to this Court from the High Court, the time limits provided in the High Court Rules for instituting proceedings for certiorari (six months: O 55 r 17) and for mandamus (two months: O 55 r 30) continue to apply unless extended (under either High Court Rules O 60 r 6 or Federal Court Rules O 3 r 3): see e.g. Re Ross; Ex parte The Australian Liquor Hospitality & Miscellaneous Workers Union (2001) 108 FCR 399.
15 In Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 McHugh J, in a much cited passage, gave helpful guidance as to how the relevant discretions to extend time should be exercised. The passage bears quoting in full:
'In this case, the Full Bench gave its orders on 19 February 1999 and delivered its reasons for the decision on 16 April 1999. The applicant did not file his notice of motion in this Court until 21 July 2000. Assuming that the time limits in rr 17 and 30 of O 55 of the High Court Rules apply when constitutional relief is sought against the AIRC and that his delay is reasonably explained - which I very much doubt in this case - I would not grant the applicant an extension of time. For the reasons that I give below, the applicant has not been able to advance even an arguable case of jurisdictional error by the Full Bench.
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.
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 a 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.
An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.'
16 In M206 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 24, Goldberg J observed at [15]:
'There are a number of factors which the Court may take into account in determining whether an extension or an enlargement of time should be granted. Factors which the Court has taken into account in the past include the reason for the delay in applying for the issue of the writs, the length of the delay, whether any decision was made to accept the decision of the Tribunal and whether any party may be prejudiced if the extension is granted. There is also an underlying principle that there should be an end to litigation and that the Court should seek to achieve justice between the parties.'
17 The first factor in the applicant's favour is that, if his asserted fears are genuine and well-founded, the case is of great importance to him. Next, the applicant seizes upon the supposed lack of prejudice to the respondent. Of course, the Minister can conduct the case as well now as five years ago. However, even if the broader detriment to the orderly conduct of a controlled immigration programme, for which the Minister is responsible to the Australian people, should the applicant succeed in his effort to have time enlarged in the case of certiorari (and to resist a discretionary denial of the relief claimed by way of prohibition), does not fall under the rubric of 'prejudice', such a lack of prejudice is only one factor. The lack of forensic prejudice, in my opinion, is strongly outweighed by the other factors referred to in the passages quoted from those two judgments. In any case, the harm to the public interest, should the applicant succeed in being pardoned for his delay, is highly relevant.
18 It is important, it seems to me, that the applicant made a decision, in Goldberg J's phrase, 'to accept' the Tribunal's determination. The approach to the Minister under s 417 of the Act is significant. That section allowed the Minister personally to 'substitute for a decision of the [Refugee Review] Tribunal' a decision more favourable to the applicant when the Minister thought it in the public interest to do so and 'whether or not the Tribunal had the power to make that decision'. The policy of the section includes conferring some significant process benefits on a person disappointed with the outcome of his or her application to the Tribunal. The Minister may, exceptionally, make a decision, on broad policy grounds, even though the applicant does not satisfy Australia's legal requirements for the conferral of refugee status. In general, to prevent the reality and appearance of partiality or corruption, the Minister is bound to adhere to the prescribed qualifications for visas and is not given any general overriding discretion. A condition of exercise of the Minister's s 417 power is that there be 'a decision' of the Tribunal. That is, when a person seeks the exercise of the Minister's s 417 powers, that person implicitly asserts that there is such a decision. But the applicant now wishes to say that the Tribunal made a jurisdictional error on account of having denied him natural justice; that is, he is necessarily asserting that in law there was no decision of the Tribunal: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; S157.
19 The position is in some respects akin to the imputed waiver of a private right or the election between inconsistent legal rights (assuming there is a difference between the legal doctrines referred to as waiver and election). These doctrines were discussed in a different context in Commonwealth v Verwayen (1990) 170 CLR 394 at 405-9, 421-6, 451-3, 470-5, 480-6, 491-9. It might be unsafe to assume that either doctrine or analogous considerations can legally debar a person from seeking a constitutional writ, upon the basis that s 75(v) may guarantee access to the High Court to persons within Australia, in vindication of the rule of law; further, the public as well as individuals have an interest in such a guarantee: see generally S157. There is also the consideration that a person must knowingly, at least in the sense of deliberately, exercise the right, or do the thing, inconsistent with the presently asserted right (although showing this would appear to present the Minister with few problems in this case: it is not necessary that the approbator and reprobator should have appreciated the legal effect of his or her inconsistent step: Verwayen at 473). But I see no reason why a previous implicit assertion by the applicant of the validity of the Tribunal's decision ought not to be taken into account as a discretionary matter.
20 It is also relevant to the exercise of the Court's discretion that the Tribunal Member, for reasons having nothing to do with the alleged denial of natural justice and which are apparently legally unassailable, saw real reason to reject, as a real and substantial possibility, the truth of the applicant's claims. It is true that, on a rehearing, the applicant might be able to show that his supporting documents are genuine and persuasive and, if that were so, the other criticisms might not be so confidently made. But the applicant has not shown that he is able to produce any other material that would authenticate the genuineness of the documents. At least some of the Tribunal Member's observations on the plausibility of the applicant's story appear impressive. Thus it does not appear that, underlying the legal debate, the applicant has, on the material available to him, a case with any strong prospect and ultimately favourable reconsideration of his claims.
21 In all these circumstances, in my opinion it would be quite wrong, even if the applicant has a good case on its merits for constitutional relief and notwithstanding the possible importance of the case to him, to sanction such a long and poorly explained delay. Where there is a formal time limit, I would not extend time to permit him to claim the relief sought. Further, I would as a matter of discretion decline, on the ground of the applicant's long and unsatisfactorily explained delay, to grant any relief to which he might otherwise be entitled.
22 In any event, the case as to constitutional relief appears not to be meritorious.