FEDERAL COURT OF AUSTRALIA

Applicant A202 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 732

APPLICANT A202 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 172 OF 2003

MANSFIELD J

6 JUNE 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         Application by notice of motion for an extension of time is refused.

2.         Application is dismissed.

3.         Applicant to pay the first respondent’s costs fixed at $1250, including disbursements.

4.         No order for costs of second or third respondents.

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 file proceedings instituted in the High Court on 5 September 2002.  The proceedings sought an order nisi for a writ of certiorari to quash a decision of the Refugee Review Tribunal (the Tribunal) given on 6 October 2000 affirming a decision of a delegate of the first respondent not to grant to the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).  The application in the High Court also sought associated relief.  The application was not made within time.

2                     I adopt, without repeating, the analysis of the relevant rules including the applicable time limits and the principles to be applied in the circumstances where an extension of time is sought, discussed by von Doussa J in Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567 (Applicant A16).  Counsel for the parties did not contend that I should do otherwise.  I therefore simply address the application of those principles to the present application. 

3                     Counsel for the applicant has identified two discretionary factors which, it is contended, support the grant of the extension of time sought.  The first factor relates to the explanation for what is clearly a lengthy delay in instituting the proceedings.  The decision of the Tribunal was notified to the applicant by letter on 26 October 2000 and the proceedings in the High Court were not instituted for almost two years thereafter. 

4                     The explanation in the affidavit is that the applicant, following the Tribunal's decision, elected to proceed to seek a decision from the first respondent under s 417 of the Act, granting to him a more favourable decision than that made by the Tribunal in respect of his visa application.  On his affidavit, he learnt of the decision of the first respondent declining to exercise that power in his favour on 21 December 2001, still more than eight months before the institution of the proceedings in the High Court.  There is no explanation offered for that latter part of the delay.

5                     In respect of the earlier part of the delay, there is no assertion that the applicant did not understand the time limit applying to him under High Court Rules Order 55 r 17 and 30, following receipt of the Tribunal's decision.  There is no assertion that he believed that the application under s 417 was an exercise of a procedural option within the time limit so that no time limit was then running against him.  I do not think the explanation offered in these circumstances is a very satisfactory one.  Moreover, the application under s 417 might be understood as an acceptance by the applicant at that time that the Tribunal's decision was not imbued with an error of a jurisdictional nature which might have led to him having the opportunity to set it aside.  However, I do not take that step and, given the significance of the decision to the applicant which he now seeks to challenge, it seems to me the most important issue is whether he has any real prospect at all of establishing, if an extension of time is granted, that the decision of the Tribunal should be quashed.

6                     On that topic, counsel for the applicant has identified one matter only - namely, that the applicant was not accorded procedural fairness in connection with the making of the decision because he was not given the opportunity to be heard before the Tribunal.  I accept that the Tribunal had both a statutory and common law obligation to provide to the applicant the opportunity to be heard before it made its decision:  see Applicant S157 of 2000 v Commonwealth of Australia (2003) 195 ALR 24.  However, in my judgment, there is simply no basis upon which the applicant has presented an arguable case that he was not accorded that opportunity.

7                     The Tribunal's reasons record:

‘The Tribunal wrote to the Applicant at the address provided by the Applicant to advise that the Tribunal was unable to make a favourable decision on the material before it and to invite the Applicant to attend a hearing and give evidence.  No response was received from the Applicant.’

8                     There is nothing to indicate on the part of the applicant that the Tribunal's recording of those matters is erroneous or resulted from any misunderstanding on its part either created by the Tribunal or at all.  In my judgment, there is nothing to suggest that the Tribunal did not accord to the applicant the opportunity to be heard required by the law.  Consequently, I think there is no prospect on the material before me that his application, even if an extension of time is granted, could succeed.

9                     In those circumstances, and applying the principles to which I have referred by reference to the decision of von Doussa J in Applicant A16, in my view the application for the extension of time should be refused.  I make the following orders:

1.   Application by notice of motion for an extension of time is refused.

2.   Application is dismissed.

3.   Applicant to pay the first respondent’s costs fixed at $1250, including disbursements.

4.   No order for costs of second or third respondent.

Associate:

Dated:              22 July 2003