FEDERAL COURT OF AUSTRALIA

Applicant A215 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 743

APPLICANT A215 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 181 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 the second and 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 apply for relief in the nature of a writ of certiorari to quash a decision of the Refugee Review Tribunal (the Tribunal) given on 21 May 2001 and for consequential orders.  The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act).

2                     Counsel for the applicant has indicated that the Tribunal’s decision was notified to the applicant on 13 June 2001, some 15 months prior to the institution of this application in the High Court on 19 September 2002.  In Applicant A16 of 2002 v Minister fro Immigration & Multicultural & Indigenous Affairs [2003] FCA 567, von Doussa J, in a similar matter, has referred at some length to the relevant procedural rules, including the time limits applying in the present circumstances, and to the principles which should be applied in determining the present application.  Counsel have agreed that his Honour correctly expressed those principles and identified those procedural prescriptions, and I shall not repeat them.  I adopt them and apply them in the present matter.

3                     Counsel for the applicant identified two considerations which, he contended, were relevant to the exercise of the discretion to extend the time under O 60, r 6 of the High Court Rules in the present matter.  The first concerned the delay and the reasons for the delay.  The second related to the merits of the application.

4                     The applicant says that the sole reason for the delay in instituting proceedings in the High Court was that he could not afford to do so.  He was unemployed and as soon as he could borrow money to obtain professional assistance to make the application in the High Court, he did so.  I do not want to be taken as accepting that such an explanation is a satisfactory explanation for delay.  However, in this matter I do not think it is necessary to take that aspect further.  I propose not to weigh in the scales in any sense adversely to the applicant the delay in instituting the proceedings in the High Court.

5                     It seems to me that the more significant issue is whether he has any prospect at all of succeeding in his application if an extension of time as sought were to be granted.  If he has no prospect at all of succeeding, then I do not think it is appropriate to grant the extension of time which he seeks.

6                     Counsel for the applicant identified that the sole contention of the applicant is that the Tribunal committed jurisdictional error so as to warrant the grant of the relief which he claims by reason of a failure to accord him procedural fairness in connection with the making of its decision.  I accept that such a failure on the part of the Tribunal, in particular a failure to give him the opportunity to be heard (which is the way in which he claims not to have been accorded procedural fairness), would give rise to jurisdictional error on the part of the Tribunal so as to empower the court to quash its decision:  see Plaintiff S157/2000 v Commonwealth of Australia (2003) 195 ALR 24. 

7                     It is, therefore, necessary to turn to consider whether the applicant has any prospect of showing that, in fact, he was not given the opportunity to be heard before the Tribunal.  The Tribunal in its reasons records the following:

‘On 20 February 2001 ... The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 16 May 2001.  A copy of the letter was sent to the adviser and his residential address.  On 26 February 2001 the applicant advised the Tribunal that he wanted to give oral evidence (Tribunal folio 18).  However the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend (Tribunal folios 23‑24).

In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.’

8                     There is also in evidence a document entitled ‘Response to Hearing Invitation’ dated 26 February 2001, signed apparently by the applicant and indicating that he wished to appear at the hearing, and a letter from the Tribunal to the applicant and to his migration agent dated 20 February 2001, indicating the hearing was to take place on 16 May 2001. 

9                     There is no evidence from the applicant to gainsay any of those matters referred to by the Tribunal or that evidence.  He does not say he was not invited to give oral evidence or to present arguments, as the Tribunal asserts.  He does not say he was not notified of the hearing date.  He does not say he did not have an opportunity to attend the hearing.  He does not offer any explanation for the failure to attend the hearing.  In those circumstances, in my judgment, there is simply no prospect at all of the applicant establishing that the Tribunal failed to accord him procedural fairness in the making of its decision in the way in which the applicant contends.

10                  I therefore consider it appropriate to dismiss the application.  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 the second and third respondents.

Associate:

Dated:              22 July 2003