FEDERAL COURT OF AUSTRALIA

NAHT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 485

MIGRATION – protection visa – judicial review – Minister’s delegate refused to issue protection visa – decision affirmed by Refugee Review Tribunal – a single judge of the Federal Court found that the Refugee Review Tribunal did not make an error of law when it affirmed the decision of the delegate of the Minister – whether unintentional and not unusual delay between the filing of an application for review and the date of the hearing constitutes a denial of natural justice – whether an extension of time should be granted to file an appeal from the decision of a Judge of the Federal Court to a Full Court of the Federal Court where such an extension of time would be futile given the grounds of appeal .

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Migration Act 1958 (Cth)

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 – referred to

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 – referred to

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 – referred to

NAHT OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N329 OF 2003

HILL J

14 APRIL 2003

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent Minister’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant applies for an extension of time in which to file and serve a notice of appeal from the judgment of a Judge of this Court (Beaumont J) given on 22 August 2002. 

2                     The applicant is a citizen of Bangladesh.  He had applied for a protection (Class XA) visa and that application was refused by a delegate of the respondent Minister for Immigration and Multicultural Affairs and Indigenous Affairs.  The applicant then applied on 26 October 1999 to the Refugee Review Tribunal to review that decision.  The Tribunal heard oral evidence from the applicant on 11 March 2002 and delivered a decision affirming the delegate’s decision on 18 March 2002.  The applicant then applied to this Court for judicial review of the Tribunal's decision.  His application to this Court followed the enactment of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). The Tribunal's decision was a privative clause decision for the purposes of s 474 of the Migration Act 1958 (Cth).

3                     Beaumont J dismissed the application and delivered reasons for judgment on 22 August 2002.  The applicant had thereafter 21 days in which to lodge an appeal to this Court.  He did not do so.  It appears from an affidavit filed by the applicant’s solicitor that on 12 September 2002, that is to say approximately the last date on which an appeal might be brought to a Full Court of this Court, that the solicitor made an application to the Minister for exercise of the Minister’s discretion pursuant to s 417 of the Migration Act 1958 (Cth).  On 4 February 2003 the High Court of Australia delivered judgment in the matter of Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.  In that and the judgment delivered at the same time in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1, the High Court considered, in the context of its own jurisdiction, the proper interpretation of s 474 of the Migration Act 1958 (Cth).

4                     Although at least one Judge of this Court has expressed a view which may be thought to be to the contrary, it can certainly be said that the decision of the High Court would cast grave doubts on the correctness of the decision of the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449.  For the purposes of the present application, I am prepared to accept that the decision of the High Court effectively overrules decision of the Full Court of this Court and has the result that an applicant for judicial review in this Court could succeed if the applicant could show that the Tribunal had made a jurisdictional error.

5                     Counsel for the applicant submitted that at the time 21 days had expired in which to appeal from the decision of Beaumont J, no competent solicitor would advise his or her client to appeal because having regard to the decision of the Full Court of this Court in NAAV, an appeal would inevitable fail and indeed for a solicitor to advise a client to appeal might well lead to an order for costs being made against the solicitor. Reference was made to a decision of Stone J of 29 October 2002 in NABY of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1334.  It is further submitted that the situation changed dramatically after the High Court's decision in Plaintiff S157/2002 and accordingly that leave should now be given to the applicant to appeal out of time from the decision of Beaumont J.

6                     It is necessary to consider briefly the matters that were argued before Beaumont J particularly having regard to the submission that appeal from that decision was affected by the state of the law at the time and the submission that that affect is now removed by the decision of the High Court. 

7                     Three matters were argued before Beaumont J.  I shall deal with each of the matters separately.

8                     The first matter raised before Beaumont J was that the Tribunal had failed to accord to the applicant procedural fairness because such a long time delay had occurred between the applicant applying to the Tribunal for review in October 1999 and the ultimate hearing of the application on 11 March 2002 and that as a result the applicant became subject to the privative clause regime of s 474.  Given now that a consequence of the High Court's decisions is that the applicant could succeed in judicial review of the Tribunal's decision as long as the Tribunal could be shown to have made a jurisdictional error it is hard to see any substance in this ground.

9                     There could be no suggestion that the Tribunal deliberately delayed the hearing of the review so as to prejudice the applicant. Indeed the legislation, which introduced the privative clause regime, did not come into effect until 2 October 2001 well after the proceedings had been instituted and considerably before the hearing took place.

10                  It is difficult to see that mere delay could constitute a denial of procedural fairness unless at least there was some ultimate prejudice to an applicant.  It could hardly be suggested that merely because something over two years elapsed between application and hearing in a tribunal or a court that that itself was a denial of procedural fairness.  In my view and certainly since the decision of the High Court in Plaintiff S157/2002 there can simply be no case made out that there has been a denial of procedural fairness which would have any chance of success in an appeal.

11                  The second matter that was heard before Beaumont J was a claim of bias.  It was conceded, and I think rightly, by counsel that there was no material before Beaumont J from which bias in the legal sense could be made out.  It follows that the question of whether the applicant could now argue jurisdictional error would have no effect on that ground.

12                  The third and final ground that was argued before Beaumont J was put on the basis that the Tribunal was obliged to act as an inquisitor and informally but that the Tribunal had not carried out its obligation in accordance with law.  At first sight it might be thought that what was being argued before Beaumont J might well have involved jurisdictional error. However, the argument that was really put before Beaumont J was, as his Honour points out in his reasons, a claim that the Tribunal had given insufficient weight to material before the Tribunal indicating that the applicant would have no protection from the authorities were he to return to Bangladesh.  As his Honour points out such a matter is not the subject of judicial review, rather, it is an attempt to have a review on the merits.  In other words, no question of jurisdictional error arose in respect of the third ground.

13                  It follows in my view that there was no ground argued before Beaumont J which necessarily required consideration of or was decided adversely to the applicant by the decision of the Full Court of this Court in NAAV.  Likewise, the decision of the High Court in Plaintiff S157/2002 in no way affected the matters that were argued before Beaumont J.  For these reasons in my view the applicant has not made out a reason why now an extension of time should be granted.  Put in legal terms the present is not a case where circumstances out of the ordinary have been shown.  In my view no special reasons exist for leave to appeal out of time being given.

14                  I should say that another matter which in my view supports dismissal of the present motion is that were leave given it seems, and for the reasons which I have demonstrated, that an appeal would be futile.  I would accordingly dismiss the motion with costs.

Associate:

Dated:              15 May 2003