S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

The court: 1 This is an appeal from a judgment of a single Judge of the Court dismissing an application remitted from the High Court for writs of mandamus prohibition and certiorari directed to the Refugee Review Tribunal ("the Tribunal").

The exercise of the Court's discretion to extend time 2 The appellant is a Bangladeshi national who arrived in Australia on 31 August 1995. On 11 February 1997 he applied for a protection visa which was refused by a delegate of the respondent Minister on 30 April 1997. That refusal was affirmed by the Tribunal on 31 March 1998. However, the appellant did not institute proceedings for judicial review of that refusal until 13 February 2003. The learned primary Judge considered whether, in the exercise of the Court's discretion, the application for judicial review should be refused on the ground of delay. In this context, his Honour first noted at [14] of the reasons below: '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.' 3 Then followed an extensive quotation from the judgment of McHugh J in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 which identified, as among the factors to be taken into account in exercising the discretion to extend time, the prospects of success on the merits, the history of the matter, including the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. McHugh J also stressed the need for an end to litigation which calls into question the efficacy of acts or decisions of public bodies or officials. As well, McHugh J noted the presumption that rules of court imposing time limits are to be obeyed which entails that they should only be relaxed in exceptional circumstances. An applicant's inability to obtain favourable or competent legal advice within the time prescribed by the rules will rarely amount to such exceptional circumstances. 4 The learned primary Judge also cited these observations of Goldberg J in a cognate context in M206 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24 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.' 5 In the course of applying to the present appellant the principles distilled from the cases just cited, it was noted that there would be little or no forensic prejudice to the respondent Minister if the extension were granted, and that the case is of great importance to the appellant. However, the learned primary Judge considered that those matters were "strongly outweighed" by the other factors identified in the authorities which he had cited and observed that "In any case, the harm to the public interest, should the applicant succeed in being pardoned for his delay, is highly relevant." 6 One matter to which his Honour accorded particular weight was the appellant's "acceptance" of the Tribunal's decision. That was inferred from an approach which the appellant had made to the Minister under s 417 of the Migration Act 1958 (Cth) ("the Act"). In support of this inference it was noted at [18] of the reasons at first instance: '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.' 7 His Honour acknowledged that the "acceptance" of the Tribunal's decision which he imputed to the appellant did not, as a matter of law, preclude an application for a prerogative writ which is made available by s 75(v) of the Constitution. However, he could 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." 8 After discounting the appellant's prospects of success on the merits because of his likely inability to establish that his supporting documents were authentic, the learned primary Judge concluded as to the exercise of discretion: '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.' 9 That analysis has been criticised by Counsel for the appellant on the hearing of the appeal. It was submitted that, in the absence of evidence of a deliberate choice, an application under s 417 did not signify an election to accept the decision of the Tribunal. The inference was at least equally open that an applicant with little or no English and lacking the financial resources to retain legal representation would forego the preferable approach to this Court or the High Court for judicial review in favour of an application to the Minister only where that course was seen as the single feasible option. 10 This submission does not overcome the difficulty which weighed with the learned primary Judge that there was no evidence before the Court of the appellant's state of mind when he decided on 31 July 1998 and again on 20 August 1998 to write requesting the exercise in his favour of the Ministerial discretion conferred by s 417. It is true that in his affidavit sworn 2 October 2003 and filed in this Court the appellant deposed: 'I now will explain the reason why I delayed starting the proceedings. Once the Tribunal rejected my application I was shocked and surprised and it took some time for me to accept it. I wanted to go to Court for review but I did not have any financial means to do that so I could not go to court. By the time I realised my mistake time has passed and I was barred from applying because of time limits. Though I spoke to many people after that on several occasions everyone told me about the time limit that will bar any application in the court. However once the decision in S157 came there was the possibility that time issue could be overcome and therefore I quickly applied to the High Court to get a remedy in relation to my refugee application.' 11 The Tribunal's decision was made on 31 March 1998 at a time when the appellant was being advised by a firm of solicitors. Had he been advised then that there were grounds for seeking judicial review of the Tribunal's decision but been precluded from doing so by impecuniosity, that could easily have been indicated in the affidavit of 2 October 2003. The passage from that affidavit quoted above indicates only that the appellant made a "mistake" which he later realised. The "mistake" is not identified and it was reasonable for the learned primary Judge to comment that "the applicant does not say that he received no legal or other relevant advice from a knowledgeable source after the Tribunal's decision nor, if he did not, why." It was also, we consider, eminently open to his Honour to characterise the appellant's delay, as he did in the passage quoted at [8] above, as "poorly" or "unsatisfactorily" explained. 12 Mr Silva, who appeared as solicitor for the appellant on the hearing of the appeal also contended that the learned primary Judge had erred in exercising the discretion without reaching a final conclusion on the substantive merits of the case for the grant of a protection visa. He referred in support of this argument to these observations of Heerey J in VQAN v Minister for Immigration and Multicultural and Ethnic Affairs [2003] FCA 1541 (19 December 2003); '21 Goldberg J [in M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146] did not proceed on the basis that delay could be the sole consideration in exercising the discretion to refuse relief. His Honour in fact considered the merits of the proposed application at some length: see [24]-[34]. 22 I conclude therefore that it would not be a proper exercise of discretion to completely ignore the applicant's prospects of success. This was not in fact done in the cases relied upon by counsel for the Minister. Moreover, his argument seems to be, practically speaking, inconsistent with the course adopted by the Full Court in Ngu. 23 If, as I therefore hold, the substantive merits must be considered, two approaches are possible. The substantive arguability might be considered as part of a balancing exercise, so that the longer the delay without reasonable explanation, the stronger would need to be the argument on the substantive merits. Alternatively, the court should proceed to reach a final conclusion one way or the other on the substantive merits and, if satisfied that a case of jurisdictional error is made out, then consider whether relief should be refused because of delay or other discretionary factors. This question was not argued. It is not necessary to express a conclusion because in the view I take the same ultimate result would be reached whichever approach were adopted. I would express a tentative preference for the latter, which seems more consistent with the reasoning of Gaudron and Gummow JJ in Aala at [54] et seq.' 13 However, we do not understand Heerey J in that passage to have done more than express a preference for one of two judicial approaches. He clearly did not go so far as to say that it was legally impermissible to reach only a provisional view about the applicant's prospects of success on the substantive merits and then take that provisional view into account in exercising the discretion. Moreover, the learned primary Judge in the present case was precluded from reaching a concluded view on the substantive merits because the circumstances which the appellant claimed constituted the denial of procedural fairness discussed below meant that matters which might have tended in favour of acceptance of the appellant's case were not before the Tribunal or the Court. It is clear that his Honour evaluated separately from the exercise of the discretion to extend time the appellant's claim that the Tribunal denied him procedural fairness. 14 For these reasons we are not persuaded that the learned primary Judge acted upon a wrong principle, allowed himself to be affected by irrelevant matters or failed to take into account some relevant consideration so that his discretion miscarried in the way explained, eg, in House v The King (1936) 55 CLR 499 at 504-505.