FEDERAL COURT OF AUSTRALIA

Applicant A201 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 752

APPLICANT A201 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 171 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.

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

REASONS FOR JUDGMENT

1                     This is an application by notice of motion for an extension of time within which to file proceedings in the High Court of Australia, instituted on 5 September 2002.  The proceedings were for relief in the nature of a writ of certiorari and other prerogative writs, with a view to quashing a decision of the Refugee Review Tribunal (the Tribunal) made on 10 August 2001 affirming an earlier decision of a delegate of the first respondent not to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).  The proceedings in the High Court have been remitted to this Court, along with 364 other matters, by order of the High Court of Australia made on 7 February 2003.

2                     I have heard an application seeking similar relief earlier this morning in matter S 151 of 2003 (see Applicant A174 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 751).  I will not repeat the general background of the remitted matters to which I there referred.  I proceed to consider this matter in its particular circumstances in the light of that general background and in light of the principles upon which such an application should be addressed, as discussed by von Doussa J in Applicant A16 of 2002 v the Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567.

3                     Counsel for the applicant has addressed two relevant discretionary considerations only.  The first is the length of the delay and any associated explanation for the delay in the institution of proceedings in the High Court.  The second is to demonstrate that the applicant has some prospect of succeeding on the merits of her application if the extension of time sought is granted.

4                     I find on the evidence that the applicant was notified of the decision of the Tribunal by letter sent to her at her home address, which, according to her affidavit is still her present address, on 31 August 2001.  The application in the High Court was therefore instituted a little over 12 months later.  The only material filed by the applicant in support of her application is in the following terms:

‘I did not receive notification of my RRT decision until I lodged FOI request in August 2002 because my agent never gave me any documents.  Whenever I asked about my status she said [presumably referring to her migrant agent] everything is okay, until I went to another agent and lodged FOI request. I found out that a decision has been made.’

5                     As I put to counsel for the applicant during the course of his submissions, the evidence indicates that the applicant was notified of the Tribunal's decision by letter of 31 August 2001, sent to her at her home address, as well as sent to her migration agent.  The fact that her ‘agent never gave me any documents’ does not directly respond to the evidence of a direct communication with her of the Tribunal's decision.

6                     However, in view of the terms of her affidavit, I am prepared to assume that, upon receipt of the Tribunal’s decision sent with its letter of 31 August 2001, she did not appreciate the fact that the Tribunal's decision was made adverse to her.  I am prepared to assume, therefore, that she has some explanation for not having instituted proceedings in the High Court within the time provided under High Court Rule O 55, r 17 for an application for an order nisi for a writ of certiorari - namely, six months from the date of the decision.  Accordingly, in deciding whether or not to grant the application, I do not weigh in the scales adverse to her in the circumstances the delay in bringing the application.

7                     However, in my judgment, there is simply nothing to show that she has any prospect of establishing that the Tribunal's decision was reached through error on its part which could amount to jurisdictional error.  The only ground upon which jurisdictional error is said to be arguable is that a breach of the rules of natural justice occurred in connection with the making of the Tribunal's decision.  I accept that such a breach, if established, could disclose jurisdictional error on the part of the Tribunal so that its decision should be quashed:  see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.  What is entirely missing in the material before me is anything to show that there is any prospect of the applicant showing a breach of the rules of natural justice in this matter. 

8                     There is nothing in the material before me to indicate that the applicant was not invited to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review as required by s 425 of the Act or that she was not given notice of an invitation to appear before the Tribunal as required by s 425A of the Act.  To the contrary, the Tribunal in its reasons states that on 22 June 2001 it wrote to the applicant inviting her to give evidence at the scheduled hearing and that no reply was received from the applicant or her adviser.  The material simply does not refute this evidence.  There is nothing to indicate that she was unaware of the date of the hearing before the Tribunal.  There is no explanation offered for why she did not attend.  The Tribunal's decision records that:

‘The applicant has not availed herself of an opportunity to present her claims at a hearing.’

That statement is not gainsaid.

9                     In those circumstances, it seems to me that there is simply no prospect at all of the applicant establishing as a fact that she did not have an opportunity to be heard before the Tribunal either as required by the Act or in accordance with the common law rules of procedural fairness.  As I do not think there is any such prospect of her succeeding in setting aside the decision of the Tribunal for jurisdictional error, in my view the appropriate order is that the application by notice of motion for extension of time should be refused.

10                  I make the following orders:

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

2.   Application dismissed.

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

Associate:

Dated:              22 July 2003