FEDERAL COURT OF AUSTRALIA

Opanayaka Mudiyanselage v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 823

MIGRATION – application for writs of prohibition and certiorari – application for certiorari out of time – whether an extension of time should be granted pursuant to O 60 r 6 of the High Court Rules – whether delay was occasioned by special circumstances – reason for delay was applicant was awaiting the outcome of his request to the Minister to exercise his discretion under s 351 of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth)

High Court Rules:  O 55 r 17(1), O 60 r 6

Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491, applied

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

Re  Batuwantudawa [2003] FCA 684, applied

MAHESH ROY SUSANTHA OPANAYAKA MUDIYANSELAGE v THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 155 of 2003

GOLDBERG J

16 JULY 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         The application by the applicant for writs of prohibition and certiorari be dismissed.

2.         The applicant pay the respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

1                     On or about 31 July 2002 the applicant filed an affidavit and draft order nisi in the High Court, which order was amended on 28 January 2003, seeking the issue of constitutional writs of prohibition and certiorari against the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) and the Migration Review Tribunal (“the Tribunal”) in relation to the quashing of a decision of the Tribunal on 29 June 2000, affirming the decision of a delegate of the Minister to refuse the grant of a Change in Circumstance (Residence) (Class AG) subclass 806 – Family visa to the applicant.

2                     It is apparent from the material and the applicant’s submissions today that what he is seeking is the setting aside of the decision of the Tribunal and the opportunity for the Tribunal to re‑hear his case on the basis of him presenting further material to it.

3                     On 7 February 2003 the High Court remitted the matter to the Federal Court.  As the decision of the Tribunal was more than six months before the application was made to the High Court, the applicant requires an order for an enlargement of time within which to make his application for a writ of certiorari.  Order 55 rule 17(1) of the High Court Rules provides that:

“An order nisi for a writ of certiorari to remove a judgment, order, conviction or other proceeding, for the purpose of its being quashed, of an inferior court or tribunal, or of a magistrate or justices, shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be prescribed by any law.”

The High Court and this Court can enlarge that time under O 60 r 6 of the High Court Rules.

4                     The applicant sought an extension of time in the papers filed in the High Court and it is necessary to consider that application as the threshold question in the matter which was set down for hearing this day.  Having regard to the principles to be applied, it is relevant to understand the background to the proceeding. 

5                     The applicant arrived in Australia on 18 March 1996.  At that time the applicant held a Tourist (Short Stay) subclass 676 visa and thereafter he was granted other visas which enabled him to extend his stay in Australia.

6                     On 30 June 1997 he applied for a protection visa which was refused on 31 July 1997.  He also applied for a further Sri Lankan (Temporary) (Class TT) subclass 435 visa, which application was refused on 3 October 1997.  On 29 July 1998 the applicant applied for a Change in Circumstance (Residence) (Class AG) subclass 806 – Family visa in which application he claimed to be a special need relative of his sister.  His sister was then and is now an Australian permanent resident.  In support of his application, the applicant provided a letter dated 25 July 1998 signed by Dr A. K. Singh of the Endeavour Hills Medical Centre.  The letter stated:

“The above patient [the applicant’s sister] is under my medical care.  She has recently been depressed because of her brother’s impending expiry of visitor visa.  I believe an extension of his visa would help Mrs Godewatte’s emotional state.”

7                     On 21 September 1999 the delegate of the Minister refused the application for the Change in Circumstance (Residence) Class AG subclass 806 – Family visa.  On 29 June 2000 the Tribunal affirmed the decision of the delegate refusing a grant of the visa. 

8                     The only documentation before the Tribunal at that time was the letter from Dr Singh.  In the Tribunal’s decision it noted that in order to be granted a visa under Class AG, the applicant was required to satisfy all the criteria of one or more of the subclasses listed under Item 1107 of Sch 1 of the Migration Regulations 1994 (Cth).

9                     The only claim which the applicant made in relation to the subclass 806 – Family was that he was a special need relative of his sister.  In its reasons, the Tribunal set out the definition of “special need relative” in reg 1.03 in the following terms:

“in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a)       the citizen or resident has a permanent or long‑term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

(b)       the assistance cannot reasonably be obtained from:

(i)         any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

(ii)        welfare, hospital, nursing or community services in Australia.”

10                  The Tribunal found that there was no evidence before it, nor were any claims asserted, in relation to the situations of death or disability.  The Tribunal observed that that left for consideration the situations of prolonged illness and “other serious circumstances”.  The Tribunal noted that the applicant had not made any statements regarding either prolonged illness or other serious circumstances affecting his sister and that the only written evidence on the file which might relate to either of these categories was Dr Singh’s letter. 

11                  The Tribunal noted that the letter was extremely brief and that Dr Singh did not describe the nature, treatment or prognosis of the condition, nor did Dr Singh indicate whether the applicant’s sister was in need of substantial and ongoing assistance.  The Tribunal noted that, although given the opportunity to provide more detailed medical evidence, the applicant had not done so.  I will return to this issue.  The Tribunal noted that the applicant’s claims were not supported in any way by his sister who was the nominator for the purpose of the visa application, and that there were no written statements by the applicant’s sister attempting to demonstrate a need for assistance.  The Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa sought.  The Tribunal therefore affirmed the decision of the delegate to refuse the grant of the visa sought by the applicant. 

12                  On 27 July 2000 the applicant requested the Minister to exercise his powers under s 351 of the Migration Act 1958 (Cth) (“the Act”).  On 27 June 2002, the Minister decided not to consider exercising his power under s 351 of the Act.  This decision was notified to the applicant by letter dated 8 July 2002. 

13                  On 31 July 2002 the applicant filed his application in the High Court.  The applicant appeared before the Court unrepresented and made oral submissions.  The applicant said that his complaint about the Tribunal was that the Tribunal did not consider his case properly.  He contended that he and his sister were not summoned to the Tribunal for an inquiry and that the Tribunal made its decision without calling him and his sister to appear before it.

14                  This submission in substance may be characterised as a claim that the Tribunal denied the applicant natural justice and a fair hearing.  That submission and complaint must be considered against the background of what the Tribunal did before making its decision.  At the time of the decision, the Act contained a number of provisions relating to the manner in which the Tribunal was to conduct its review of the delegate’s decision.  Sections 359, 359B, 359C, 360 and 379A were in the following terms:

“359    Tribunal may seek additional information

(1)       In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)       Without limiting subsection (1), the Tribunal may invite a person to give additional information.

(3)       Subject to subsection (4), an invitation to an applicant must be given to the applicant by one of the methods specified in section 379A.

(4)       Subsection (3) does not apply if the applicant is in immigration detention because of:

(a)        a decision to refuse to grant him or her a bridging visa; or

(b)        a decision to cancel his or her bridging visa.

…

359B   Invitation to give additional information or comments

(1)               If a person is:

(a)        invited under section 359 to give additional information; or

(b)        invited under section 359A to comment on information;

the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.

(2)       If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(3)       If the invitation is to give information or comments at an interview, the interview is to take place:

(a)        at the place specified in the invitation; and

(b)        at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

(4)       If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

(5)       If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

(a)        a later time within that period; or

(b)        a time within that period as extended by the Tribunal for a prescribed further period;

and then the response is to be made at an interview at the new time.

359C   Failure to give additional information or comments

(1)       If a person:

(a)        is invited under section 359 to give additional information; and

(b)        does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

(2)       If the applicant:

(a)        is invited under section 359 to comment on information; and

(b)        does not give the comments before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

360      Tribunal must invite applicant to appear

(1)       The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)       Subsection (1) does not apply if:

(a)        the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)        the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)        subsection 359C(1) or (2) applies to the applicant.

(3)       If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

379A   Methods of dispatch of certain documents

(1)       A document specified in subsection (3) is taken to be duly given to an applicant for review if:

(a)        the document is sent (physically, electronically or otherwise) to:

(i)         the last address for service provided by the applicant in connection with his or her application for review; or

(ii)               the last residential address provided by the applicant in connection with his or her application for review; and

(b)        the Tribunal has a receipt or other evidence indicating the date of dispatch.

(2)       A document specified in subsection (3) is taken to be duly given to an applicant for review if the document is given:

(a)        by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or

(b)        by leaving it at the applicant’s place of residence with a person who appears to live there and appears to have turned 16.

(3)       The documents specified for the purposes of subsections (1) and (2) are:

(a)        an invitation to an applicant under section 359 (other than an invitation to the immigration detainees mentioned in subsection 359(4)); and

(b)        an invitation to an applicant under section 359A (other than an invitation to the immigration detainees mentioned in subsection 359A(3)); and

(c)        a notice under section 360A (other than a notice to the immigration detainees mentioned in subsection 360A(3)); and

(d)        a notice under section 368A; and

(e)        a statement given under subsection 368B(6).

(4)       It is sufficient compliance with the requirement to give a document referred to in subsection (3) if a facsimile, or a certified copy, of the document is so given.

(5)       A document posted in accordance with paragraph (1)(a) must bear correct prepaid postage and, if the document is posted to an overseas address, the postage must be at the full airmail rate.”

15                  On 2 May 2000, the Tribunal wrote a letter to the applicant which was copied to his then solicitors in the following terms:

“I am writing about your application for review by the Migration Review Tribunal of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant you a Family (Residence) (Class AS) [sic] subclass 806 visa.

Section 359 of the Migration Act allows the Tribunal to invite a person to provide additional information that it considers relevant to the review of a migration decision.

With regard to your case, you are invited to provide further evidence in support of your claim to be a special need relative of your sister, Ms Merina Yvonne Merfin Godewatte.  The Tribunal notes that you have not provided any new information since the time of the primary application.

In particular, if you choose to provide further evidence, you should address in detail the nature, treatment and prognosis of your sister’s depression, whether medical opinion supports that her need for assistance is substantial and ongoing, and why such assistance cannot reasonably be obtained from either other family members or community services in Australia.

You are requested to provide the evidence you have been invited to give, in writing, within 28 days of the date of this notification.  As this letter is being posted to you, you will be considered to have been notified of this invitation to provide information 7 days after the date of this letter.  The effect of this is that you have a total of 35 days from the date of this letter for your response to be received by the Tribunal.

If you are unable to provide the evidence within the period of time referred to above, you may request in writing that the Tribunal allow you additional time in which to respond.  Such a request would need to be received before [the] end of the time allowed for your response.

Any information you provide will be considered carefully by the Tribunal.  If the Tribunal is still unable to make a decision in your favour, it will then provide you with an opportunity to appear before the Tribunal.

If the Tribunal does not receive the evidence that you have been invited to provide within the above period, it may, pursuant to section 359C of the Migration Act, make a decision on the review without taking any further action to obtain this information from you.  Also, you will not be entitled to appear before the Tribunal.” 

The last five lines of the letter are significant; they were printed in bold type.

16                  In his submissions before the Court, the applicant acknowledged that he had received the letter of 2 May 2000 from the Tribunal and that he did not reply to it.  He said he thought he would be invited to a hearing and he had prepared relevant documents.  That submission flies in the face of the last paragraph of the letter.  The applicant said in his submissions that he realised that he had done wrong.  He admitted that it was his mistake in not forwarding documents to the Tribunal at the relevant time and said he wanted to rectify the wrong he had committed.

17                  With that background I turn to the issues before the Court.  There is a threshold question to be resolved, namely, whether the applicant should be granted an extension of time within which to bring his application for a writ of certiorari.  If time is not extended then that is in substance the end of the proceeding if there is no basis thereafter for the grant of a writ of prohibition, as the gravamen of the applicant’s complaint is the decision of the Tribunal which he wishes to quash or set aside. 

18                  The applicant gave no reason for his delay in bringing the proceeding before the High Court, other than that he had acted on advice given by his lawyer.  I infer from the sequence of events to which I have referred that the delay occurred as the applicant was waiting for the outcome of his request to the Minister to exercise his discretion under s 351 of the Act.  That request was made 28 days after the Tribunal’s decision and the application to the High Court was filed 34 days after the Minister’s decision and 23 days after the decision was communicated to the applicant.  I should note that it is implicit in the request to the Minister to exercise his discretion that, at the time of the request, the applicant had accepted the Tribunal’s decision.

19                  The grant of an extension of time is a matter of the exercise of a discretion and is not automatic:  see Gallo v Dawson (1990) 93 ALR 479 at 480; Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495.  It is appropriate for a Court to take a number of factors into account in considering whether to grant an extension of time to apply for a writ of certiorari.  These factors include the reason and explanation for the delay in applying for the writ; whether there is any prejudice to any party if the extension of time is granted; the prospects of success in obtaining a grant of an order absolute and the issue of the writ of certiorari; recognition of the fact that there should be an end to litigation; and the need and desirability of doing justice between the parties.  The relevant principles were usefully explained by McHugh J in Re Commonwealth of Australia; Ex parte Marks (supra) at 495 where his Honour said:

“An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties.  That means that it is necessary to have regard to 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.  Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered.  Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.  In that respect, the present case, although important to the applicant, is not as important as many other cases.  Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this court.” [footnotes omitted.]

20                  The applicant has given no adequate explanation for the delay in applying for the writ of certiorari other than what was implicit in the sequence of events which occurred, namely his acceptance of the Tribunal’s decision as evidenced by his application to the Minister to exercise his discretion under s 351.  The observation of McHugh J in Re Commonwealth of Australia; Ex parte Marks (supra) at 495‑496 is apposite.  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, ‘[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.” [footnotes omitted.]

21                  As I have noted earlier, I infer that the reason for the delay was that the applicant was waiting on the decision of the Minister as to whether he would exercise his discretion under s 351 of the Act.  That involves the applicant having consciously elected, after the Tribunal’s decision, to accept the Tribunal’s decision, and not challenge it but rather to attempt to achieve the desired result by another avenue.  In my view, such a reason for delay does not constitute “special circumstances”.  In my view, the decision to make the request for the Minister to exercise his discretion under s 351 is not an adequate or sufficient explanation for the delay in commencing the  proceeding in the High Court.

22                  As von Doussa J observed in the case of Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at [9]:

“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 section 417.”

A similar observation was made by Gray J in Re Batuwantudawa [2003] FCA 684 at [9].  His Honour said:

“So far as the delay between the decision of the Tribunal and the commencement of proceedings is concerned, the only explanation given in the affidavit of the applicant involves her attempt to procure a favourable decision from the Minister, pursuant to s 351 of the Migration Act.  I note that the pursuit of that course by the applicant would have tended to suggest that the applicant was prepared to accept as correct the decision of the Tribunal, and that she did not intend to avail herself of the machinery that then existed under the Migration Act to seek judicial review, or to seek remedies from the High Court, in relation to it.  It seems to me that, to await the decision of the Minister under s 351 and then to attempt to seek relief in the High Court in relation to the decision of the Tribunal, was to take inconsistent courses.”

23                  The application under s 351 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. 

24                  I am also of the view that the applicant has no prospects of success in seeking to set aside or quash the decision of the Tribunal or in seeking a writ of prohibition.  The decision of the Tribunal was a privative clause decision within s 474 of the Act as the application to the High Court was made after the amendments enacted by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) came into operation on 2 October 2001. I do not consider that there is any basis for an assertion or submission that there was jurisdictional error or a denial of natural justice. 

25                  Although the decision of the Tribunal was made on 29 June 2000, prior to the enactment of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), it is still a privative clause decision because of the relevant transitional provisions – see sub‑item 8(2) of Sch 1 to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

26                  I do not consider that there was any denial of natural justice on the basis of the submissions made by the applicant.  The concept or principle of natural justice is a flexible principle which should be moulded to fit the circumstances of the particular case.  In the present circumstances, natural justice required the Tribunal to give the applicant the opportunity to present the case he wished to present and to proffer the evidence which he wished to proffer in support of his case.  There were specific statutory provisions to which I have referred which bore upon this obligation.  In my view, the Tribunal discharged the obligations it had under the statute and discharged such obligations as the principles of natural justice imposed upon it by sending to the applicant the letter of 2 May 2000.  The letter specifically stated that the applicant was invited to provide further evidence in support of his claim to be a special need relative of his sister.  The Tribunal specifically noted that the applicant had not provided any new information since the time of his primary application.

27                  It was made clear in the letter that if the applicant chose to provide further evidence he was to address particular issues, such as the nature, treatment and prognosis of his sister’s depression, whether medical opinion supported the assertion that her need for assistance was substantial and ongoing and why such assistance could not reasonably be obtained from either other family members or community services in Australia.  It was made abundantly clear in the letter that the evidence was to be provided in writing.  The words “in writing” were printed in bold black type and stood out in the letter. 

28                  It was made abundantly clear in the last paragraph of the letter that if the Tribunal did not receive the evidence that the applicant had been invited to provide within the period specified, the Tribunal might make a decision on the review without taking any further action to obtain the information from the applicant.  The last sentence of the letter bears repeating – “Also you will not be entitled to appear before the Tribunal.”

29                  It is unfortunate that the applicant did not respond to the letter in the terms the letter specified, but his failure to do so was not due to any default or error by the Tribunal and in particular it was not due to any failure to accord the applicant natural justice.  Nor was the applicant’s failure induced by any jurisdictional error.

30                  In those circumstances, even if the extension of time for filing the application in the High Court were to be granted, the application for a writ of certiorari would still be dismissed on the merits as would the application for a writ of prohibition. 

31                  In these circumstances, the application for the extension of time within which to bring the application for a writ of certiorari is dismissed, and there is no basis other than that underlying the application for a writ of certiorari which would support an application for a writ of prohibition in the circumstances. 

32                  The order of the Court will be that the application by the applicant for writs of prohibition and certiorari be dismissed and that the applicant pay the respondent’s costs of and incidental to the application.

Associate:

Dated:              6 August 2003