FEDERAL COURT OF AUSTRALIA

Applicant A174 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 751

APPLICANT A174 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 151 OF 2003

MANSFIELD J

6 JUNE 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         Application 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.

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 and other associated relief in respect of a decision of the Refugee Review Tribunal (the Tribunal) made on 15 March 2001.  The application for relief was instituted in the High Court on 16 August 2002, some 16 months after the decision of the Tribunal was notified to the applicant on 10 April 2001.

2                     The applicant has proffered some explanation for the delay in instituting the application in the High Court, in that he apparently instructed his representatives, following the Tribunal's decision, to seek an order from the first respondent under s 417 of the Migration Act 1958 (Cth) (the Act), substituting a more favourable decision in his case than that of the Tribunal.  His request to the Minister under s 417 was declined on 8 October 2001.  There is still a delay of some 10 months before the application in the High Court was instituted.  It is entirely unexplained.

3                     This is one of a large number of matters remitted to this Court by order of the High Court of Australia made on 7 February 2003.  None of the applications were considered on the merits at all in the High Court, and each matter was remitted subject to a direction that it proceed in this Court as if the steps already taken in the application in the High Court had been taken in this Court.

4                     I have the benefit of the reasons for decision of von Doussa J delivered on 29 May 2003 in Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567 (Applicant A16), which raises somewhat similar circumstances.  In that judgment von Doussa J, at pars [3] and [6], sets out the applicable procedural prescriptions under the relevant rules of the High Court and of this Court in the circumstances.  I will not repeat them.  His Honour at pars [7]-[11] then sets out the principles upon which an application such as the present should be considered.  No submission has been made that his Honour erred in his statement of the relevant principles.  I adopt them, and I do not repeat them.

5                     In accordance with the principles set out in Applicant A16, it seems to me it is important in particular to understand the explanation for the delay in the institution of the application in the High Court, to the extent to which it is explained, and perhaps more importantly, given the nature of this application, to consider whether there is any real prospect of the application, if an extension of time is granted, being successful.

6                     As I have indicated, I do not consider there is any real explanation for the delay in the institution of the proceedings in the High Court, at least from 8 October 2001.  In respect of the earlier period of six months or so between the date he was notified of the Tribunal's decision and the date he was notified of the first respondent's decision in respect of his request under s 417 of the Act, there is nothing to indicate that the applicant took the view, following the Tribunal's decision, that it involved any erroneous legal step on the part of the Tribunal, in particular any step on the part of the Tribunal which involved jurisdictional error on its part.  Indeed, the fact that his next step was to pursue the option of an application under s 417  of the Act might indicate that he perceived the Tribunal's decision to have been made lawfully and within its jurisdiction, but at least there is nothing to indicate that he regarded the Tribunal's decision as not having been made lawfully and within its jurisdiction from the time he was notified of it.  Consequently, there is little in this matter to explain in any satisfactory way the delay in instituting the proceedings in the High Court.

7                     As to the merits, counsel for the applicant has identified the foundation for the proposed attack upon the Tribunal's decision as being based upon a breach of the rules of natural justice in connection with the making of the Tribunal's decision.  The specific breach alleged was a failure to give the applicant an opportunity to be heard.  I accept that if a breach of the rules of natural justice occurred in connection with the making of the Tribunal's decision, this would provide a basis for asserting jurisdictional error on the part of the Tribunal sufficient to lead to its decision being quashed.  The recent decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 makes that clear.  More specifically, I accept that the applicant was entitled to the opportunity to be heard.

8                     However, in my view, there is nothing to indicate that that ground of attack upon the Tribunal's decision has any prospect of being made out.  The evidence shows that on 24 January 2001 the Tribunal wrote to the applicant care of his migration agent inviting him to give evidence orally at a hearing and to present arguments at a hearing then proposed to be heard on 26 February 2001.  On 26 January the applicant advised the Tribunal that he did wish to attend a hearing and to give oral evidence and to make submissions.  Neither the applicant nor his migration agent attended the hearing.  There is no evidence that the applicant contacted the Tribunal to explain his failure to attend and the Tribunal has recorded in its reasons that there was in fact no attempt to do so.  The Tribunal indicated that it allowed a further period of a few weeks to see if the applicant subsequently made some contact to explain his failure to attend and to seek a further opportunity to be heard.  He did not do so. 

9                     In those circumstances, in my judgment, there is no foundation shown upon which it could be argued that the applicant was denied the opportunity to be heard before the Tribunal.  There is no foundation for concluding that the applicant has any prospect of establishing that a breach of the rules of natural justice occurred in connection with the making of the decision in the way in which it has been submitted.  In those circumstances, I see no reason why the motion should be granted, and I dismiss it.

10                  I order that the applicant pay to the first respondent costs which I fix at $1250, including disbursements.  The result of that motion being unsuccessful is, of course, that the application itself is dismissed.  The orders are:

1.   Application 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.

Associate:

Dated:              22 July 2003