FEDERAL COURT OF AUSTRALIA

Applicants A64/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 568

APPLICANTS A64/2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 58 of 2003

von DOUSSA J

ADELAIDE

29 MAY 2003

THE COURT ORDERS THAT:

1.                  The notice of motion seeking an extension of time is dismissed.

2.                  The applicant to pay the respondent’s costs, fixed at $1,250, including disbursements.

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

REASONS FOR JUDGMENT

1                     This is a notice of motion seeking an extension of time within which to bring proceedings for prerogative relief in the nature of certiorari, mandamus and prohibition.  The proceedings were commenced in the High Court and were remitted to this Court on 7 February 2003.  This matter is one of 365 matters that were remitted on the same day to this registry. 

2                     The applicants are a husband, his wife and three children who are all citizens of Sri Lanka.  They arrived in Australia on 20 December 1996 and shortly afterwards lodged applications for protection visas.  The applications were refused by a delegate of the Minister.  The applicants sought review by the Refugee Review Tribunal (the Tribunal).  The Tribunal affirmed the decision of the delegate not to grant protection visas on 28 May 1999, and the applicants were notified of that decision within two or three days.  It was not until 17 May 2002 that an application was filed in the High Court of Australia, applying for an order nisi, the principal claim being for a writ of certiorari to call up and quash the decision of the Tribunal.  The proceedings were filed well outside the time limits prescribed in O 55 r 17 and 30 of the High Court Rules. 

3                     The High Court at no time entered on the merits of the application.  Under the remittal it falls for this Court to process the matter.

4                     Pursuant to directions given in this Court under O 51A of the Federal Court Rules on 3 April 2003 the applicant filed an application for an extension of time within which to bring the proceedings.  The application for an extension of time is supported by an extremely brief affidavit from the applicant, who says:  ‘I appealed my RRT decision to the Federal Court.  I decided to await the outcome of the Federal Court Appeal before then appealing to the High Court.’

5                     The affidavit does not say, but implies, that he also awaited the outcome of a further application for special leave to appeal to the High Court before the present proceedings commenced.

6                     The history of the earlier proceedings is as follows.  Following the decision of the Tribunal, an application for review was issued in the Federal Court.  That application was heard and dismissed by Finkelstein J on 27 October 2000.

7                     The applicants appealed to the Full Court.  The appeal was dismissed on 4 July 2001.  The applicants then filed an application for special leave to appeal in the High Court.  That application was refused on 3 May 2002.  The application for an order nisi for constitutional relief was filed 14 days later. 

8                     Counsel for the applicants has drawn the Court’s attention to the observations of Kirby J in Re Minister for Immigration and Multicultural Affairs;  Ex parte “A” (2001) 185 ALR 489 at [31] – [34].  His Honour there observed that it was undesirable to oblige persons to promptly bring proceedings under s 75(v) of the Constitution in the High Court if there were proceedings on foot in other courts that, if successful, would grant the relief sought by the applicant.  This is one such case.  Nevertheless the proceedings were issued outside the time limits prescribed in the High Court Rules.  It is common ground between the parties that this is so, and that an extension of time is required before the matter can go forward.

9                     In Re Commonwealth of Australia;  Ex parte Marks (2000) 177 ALR 491 at [13] – [15] McHugh J summarised the considerations that must be taken into account by the High Court in the exercise of the discretion to extend the time limits, pursuant to the power contained in O 60 r 6 of the High Court Rules.  It is necessary, among other considerations, to consider the prospects of the applicants succeeding if an extension of time were granted.

10                  In my opinion, in this case, there is no prospect of relief of the kind claimed in the High Court being granted if an extension of time were given.  There being no prospect, there would be no point in granting an extension of time.  In my opinion the extension should not be given.

11                  The Tribunal affirmed the decision of the delegate not to grant protection visas because it rejected as not credible the claims of the husband, who is one of the present applicants.  The visa applications for all members of the family were dependent upon his claims being accepted.  In short, the husband alleged that one evening he received a telephone call from a Tamil friend of his, with whom he worked.  The husband is not of Tamil ethnicity.  The friend said that there had been a major terrorist incident at a train station where many people had been killed.  He said that he was fearful for his own safety because of the likelihood of retaliation against Tamils.  The husband says he rescued the friend and his family who resided in the husband’s house for about three days.

12                  The husband alleged that his neighbours became aware of the presence of Tamils in his house and stoned it.  Later, the husband says he was subjected to other assaults, in respect of which the police offered him no protection, and that he was also harassed by the police who suspected him of being a Tamil sympathiser.  His claim for refugee status was put forward on the basis of imputed political opinion, namely, that he was considered to be a sympathiser to the Tamil cause. 

13                  The Tribunal, having summarised the claims made by the husband, said:

‘In summary, the Tribunal finds it implausible and does not accept that the Applicant gave refuge to Mr Francis [the friend] and his family.

Even if the Tribunal were to accept that Mr Francis and his family did indeed spend three days in the Applicant’s house, it does not accept that the consequences to the Applicant were as claimed.’

14                  The Tribunal then went on to express reasons why it did not believe, even if the claims were true, that the husband had a well-founded fear of persecution for reason of his political opinion.

15                  The conclusions of the Tribunal were challenged in the Federal Court on grounds that attacked those findings, and the attacks upon the decision were rejected.  The Full Court found no substance in the complaints that were made and, as the above history illustrates, special leave to appeal to the High Court was refused.

16                  The material that has been placed before the Court in support of the present application for an extension of time indicates no basis upon which the conclusion of the Tribunal could now be attacked.  The best that the applicants’ counsel has been able to offer is speculation that there may be a ‘Muin’ ground (see Muin v Refugee Review Tribunal;  Lie v Refugee Review Tribunal (2002) 190 ALR 601) that could warrant the grant of the relief sought in the application filed in the High Court.

17                  It is submitted that the possibility exists that papers that were taken into account in the decision-making process were not sent from the Department of Immigration and Multicultural Affairs to the Registrar of the Tribunal.  It is also submitted that there may be country information that was taken into account by the Tribunal that was not made known to the applicant.  Those possibilities cannot be accepted as there is no basis whatsoever in the information before the Court to support them.

18                  Even if it were now possible to demonstrate that there was some error in the way in which the Tribunal went about using country information that could not have been raised in the appeal process, and which could now be raised under s 75(v) of the Constitution, that would not assist the applicants.  The country information was taken into account by the Tribunal only in the consideration of its alternative reason for dismissing the application for review.  As indicated in the quotation from the reasons of the Tribunal above, the application to the Tribunal failed because the basic claims of the husband were rejected.  It was only in the alternative limb of the Tribunal’s reasons that the country information became relevant, that is when the Tribunal turned to consider what would be the consequences if it had been prepared to accept the husband’s evidence.  The principal reason for rejecting the claims, and in turn the protection visas, would stand even if error occurred in the use made of country information.

19                  The primary finding of the Tribunal is based on the rejection of the credit of the husband.  That finding was the subject of challenge in the Federal Court which failed.  The adverse credit finding remains and is fatal to the claim for protection visas.

20                  In my opinion the notice of motion seeking an extension of time should be dismissed and I order accordingly.  There will be an order that the applicant pay the costs of the proceedings, fixed at $1,250.

Associate:

Dated:              6 June 2003