FEDERAL COURT OF AUSTRALIA

Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576

APPLICANT A2 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 36 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 respondents’ 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 issue proceedings claiming relief in the nature of the prerogative writs of certiorari, prohibition and mandamus.  It is common ground that the proceedings were issued out of time in the High Court and that an extension of time is necessary.

2                     The applicant, who is a citizen of Sri Lanka, arrived in Australia on 9 March 1998.  Shortly thereafter he applied for a protection visa.  On 9 June 1998 a delegate of the first respondent refused that application.  On 6 July 1998 the applicant sought a review of the delegate’s decision by the Refugee Review Tribunal (the Tribunal).  The Tribunal affirmed the decision of the delegate on 15 August 2000, its reasons for decision being handed down on 1 September 2000.  On 10 January 2002 the applicant made application in the High Court of Australia for constitutional writs under s 75(v) of the Constitution.

3                     Those proceedings were remitted to this Court, along with 364 other matters on 7 February 2003.  The merits of the application were not considered by the High Court before the remittal occurred.  The processing of that application is now to take place in this Court according to the rules of this Court:  see O 51A of the Federal Court Rules.

4                     It is common ground that the application remains subject to the time limits imposed by the High Court Rules in respect of applications for an order nisi for a writ of certiorari:  see O 55 r 17 of the High Court Rules (a six month time limit) and for an application for a writ of mandamus:  see O 55 r 30 (a two month time limit).  It is also common ground that, under High Court Rule O 60 r 6, the Court has power to enlarge the time appointed by the High Court Rules.

5                     It is apparent from the facts already recited that there was a period of approximately 16 months between the handing down of the decision of the Tribunal and the application to the High Court.  The applicant was not however supinely inactive throughout that period.  On 6 October 2000 he applied to the Federal Court of Australia for review of the decision of the Tribunal.  That application was dismissed by consent on 16 May 2001 and the applicant was ordered to pay the respondent’s costs affixed at $2,000.  On 13 June 2001 the applicant changed tack.  Instead of challenging the decision of the Tribunal on the ground of error of law or other error, the applicant accepted the correctness of that decision and made application to the Minister pursuant to s 417 of the Migration Act 1958 (Cth), requesting the Minister to exercise his public interest power to substitute a decision more favourable to the applicant than the decision of the Tribunal.  The Minister advised the applicant that he declined to consider exercising that power on 17 December 2001.  On 10 January 2002 the applicant filed his application in the High Court of Australia.

6                     The principles to be applied in the exercise of the discretionary power to extend time under O 60 r 6 of the High Court Rules were considered by McHugh J in Re Commonwealth of Australia;  Ex parte Marks (2000) 177 ALR 491 (Marks).  His Honour observed at par [13] that in the case of an application to extend time to bring an application under s 75(v) of the Constitution an inquiry must be made as to the prospect of the application succeeding if an extension of time is granted.  The explanation for such a delay is also a relevant consideration.  Further, his Honour explained in par [15] that the discretion must be exercised having regard to all the circumstances of the case;  in particular 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.  In considering those matters it is necessary to have regard to the humanitarian purposes of the Refugees Convention under which Australia may owe an obligation to protect a refugee (see Re Minister for Immigration and Multicultural Affairs;  Ex Parte Miah (2001) 179 ALR 238 at [224]), and also to the fact that it is only necessary for the applicant to establish that there is an arguable case to be considered:  see Marks at par [18]. 

7                     Another fundamental consideration is the length of the delay that has occurred.  That matter was addressed by McHugh J in Marks, having regard to the circumstances of the case before him, at par [16].  His Honour said:

‘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 [1965] 1 WLR 8 at 12;  [1964] 3 All ER 933 at 935, “[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.’

In this case significantly more than one year has elapsed.  In my opinion there is nothing exceptional about the case that would justify an extension of time.

8                     The applicant, by direction of this Court made on 3 April 2003, filed an affidavit in support of his application for an extension of time.  The directed purpose of that affidavit was to explain the reasons for the delay which had occurred.  The applicant explained his failure to go on with the proceedings in the Federal Court by saying that it was financially impossible for him to do so and later he said that he ‘appealed’ the Tribunal decision to the Federal Court (by which I take him to mean the commencement of the review proceedings) and decided to await the outcome of those proceedings before going to the High Court.  That would be understandable if there were then no significant delay between the dismissal of the proceedings on 16 May 2001 and the commencement of the application in the High Court on 10 January 2002. 

9                     There was a significant delay for that period.  I do not think the delay is satisfactorily explained by the fact that the applicant hoped during that time to get a favourable exercise of the Minister’s power under s 417.  The application under s 417 indicates an acceptance of the decision of the Tribunal, and a decision on the part of the applicant to take another course.  Having taken that other course, in my opinion he must live with the consequence of the delay that occurred.

10                  The delay therefore is not adequately explained.  That, alone, in my view, would be sufficient to refuse the application for an extension of time.  However it is appropriate to look also at the likely prospects of success of the application if time were extended.  In my opinion the proposed application would have no realistic prospect of success.  There is no material on the file that provides a basis for arguing that there is any issue that could lead to a favourable grant of relief if the applicant were allowed to proceed.

11                  Counsel for the applicant has made the best attempt possible on the material to argue that there might be an issue relating to the use which was made of country information by the Tribunal.  The submission is that the Tribunal made use of country information in the course of its reasons for decision that had not been brought adequately to the attention of the applicant, and that there could have been a denial of procedural fairness because the applicant was not given an appropriate opportunity to respond.

12                  In my opinion a reading of the material before this Court indicates that such an argument is without substance.  The applicant, broadly speaking, made two claims why he held a well-founded fear of persecution.  The first was that the authorities would persecute him for his political opinion as a one time member of the Janatha Vimukthi Peramuna (JVP), and because the authorities thought he was a sympathiser with the Liberation Tigers of Tamil Eelam (LTTE).  The second was that he feared persecution from the LTTE who suspected he had given information harmful to their cause to the authorities. 

13                  In the course of considering the first of these claims, the Tribunal referred to country information, part of which was used favourably to the applicant.  The applicant claimed that the authorities attention was drawn to him because he had been involved in the course of his business in delivering a container which the authorities thought was filled with arms and ammunition.  The Tribunal at p 10 said:

‘I accept that the applicant genuinely feared that his past association with the JVP could result in him being prosecuted after he attracted the interest of the police in September 1997.’ 

(I interpolate that that was at about the time of the delivery of the container and there was also evidence of an earlier relationship between the applicant and the JVP political party.)  The Tribunal continued:

‘However I do not accept that he has a well-founded fear of being persecuted by the Sri Lankan authorities on this basis if he returns to Sri Lanka.  I refer to paragraph 5.8.4 of the UK Home Office report, the UNHCR report and the DFAT report dated 31 August 1998 (set out above) to the effect that the Sri Lankan authorities have not shown adverse interest in former JVP members for political reasons since the PA government came to power in 1994.’

14                  There is country information to which reference is made that justifies the conclusion reached by the Tribunal.  However there is no basis for the applicant to assert that he was unaware of that information and that conduct on the part of the Tribunal could have led him to think that there was not information of that kind available to the Tribunal.  The Minister’s delegate in the decision under review by the Tribunal, a copy of which would have been in the applicant’s possession, made reference to the UNHCR advice and the delegate observed that the advice ‘indicated that membership and support of JVP as well as political activities for JVP as such do no longer justify a well-founded fear of persecution’.  In short, the delegate’s decision alerted the applicant to the very issue and information upon which this part of the matter was ultimately decided by the Tribunal.

15                  The other passage of the Tribunal’s reasons that is relevant to the argument put forward by the applicant is on p 9.  The Tribunal said:

‘I do not accept that the police considered the applicant to be an LTTE supporter or sympathiser.  I find that they suspected him of knowingly transporting goods for the LTTE solely for financial reward.  In support of this finding I refer to the applicant’s concession at hearing that that may have been the case;  to his evidence that the police had been aware that he had been paid a large amount of money to deliver the container;  and to DFAT’s advice of 13 October 1998 (set out above) to the effect that it is implausible that the authorities would impute a Sinhalese person with a political opinion of support for the LTTE.  I note that the Sunday Observer article (referred to above) reports that people were arrested for avoidance of custom duties in relation to containers allegedly holding explosives imported for a terrorist organisation;  and that there was no suggestion that those people were viewed as supporters of the terrorist organisation.’

It will be noted that there is reference there to a DFAT advice of 13 October 1998, being advice which was published after the date of the delegate’s decision.  In this instance it cannot be said that the applicant was alerted to that report by the delegate’s decision.  However, the report of 13 October 1998 in substance contains the same information which the delegate had used from an earlier advice from DFAT, which is referred to in par 3.2 of the delegate’s decision.  Whilst the advice relied on by the Tribunal was not that identified by the delegate, the substance of the information was the same.

16                  There is nothing in the material before this Court that provides any basis for an argument that in some way the applicant was unaware of the particular issues that arose out of the country information.  There being no reason to think that there would be any likely chance of success of the application if an extension of time were granted and, as the application is grossly outside the time limits prescribed by the High Court Rules, in my opinion an extension of time should not be granted.  The notice of motion will be dismissed.

17                  The applicant must pay the respondents’ costs, which I fix at $1,250.

Associate:

Dated:              10 June 2003