FEDERAL COURT OF AUSTRALIA

M52 and M53 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1495

APPLICANT M52 OF 2002 AND M53 OF 2002 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V338 & V339 of 2003

HEEREY J

5 DECEMBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.                  The applications be dismissed.

2.                  The applicants pay the respondents’ costs.

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

REASONS FOR JUDGMENT

1                     The two applicants (designated Applicant M52 of 2002 and Applicant M53 of 2002) are husband and wife.  They are both citizens of India.  The husband arrived in Australia on 30 July 1994, and the wife on 19 February 1996.  They applied unsuccessfully for protection visas.  There were several decisions by the Tribunal which were set aside on application for review to this Court.  The relevant decisions were made by the Tribunal in the case of the husband on 18 May 2000, and in the case of the wife on 5 May 2000.

2                     Since the applications for orders nisi were not filed in the High Court until, in the husband’s case, 2 May 2002, and in the wife’s case, 3 May 2002, they are very substantially out of time.  The High Court Rules fix a limit for applying for certiorari of six months (O 55 r 17) and for mandamus two months (O 55 r 20).

3                     The significance of the delay is increased by the fact that it was only by an amendment on 7 February 2003 that the challenge was specifically directed to the Tribunal’s decision, as distinct from earlier challenges to the decision of the Minister to refuse an order under s 417 of the Migration Act 1958 (Cth).  This long delay in itself would be fatal to any extension (see generally Re Commonwealth of Australia ex parte Marks (2000) 177 ALR 491 at [13] to [16].

4                     The explanations proffered for the delay were, first, that they were making application for the s 417 decision.  This is not a satisfactory explanation: Re Ruddock ex parte LX [2003] FCA 561.  Secondly, they lacked funds.  However in this regard, and importantly for other factors, there is the circumstance that the husband and the wife challenged the Tribunal decision in the Federal Court.  They were represented by counsel.  The application was dismissed, in the case of the husband, on 11 December 2000 by North J (see Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1961) and in the case of the wife, by Finkelstein J on 26 March 2001 (Singh v Minister for Immigration and Multicultural Affairs unreported, no FCA number given).

5                     Neither judgment was challenged on appeal.  The principle propounded by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 generally speaking prevents a party from raising a claim or defence which could have been raised in earlier litigation.  This doctrine has been applied to judicial review proceedings (see for example BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669).

6                     The grounds contained in the husband’s case, in the amended application filed on 19 November 2003, and in the wife’s case, in her initial draft amended order nisi filed in the High Court on 7 February 2003, essentially challenge factual findings of the Tribunal.  There is no explanation as to why they could not have been raised in the Federal Court proceedings, even if they could provide a proper finding for judicial review, which in my opinion they do not.

7                     The parties were not represented before me.  The husband said that he was not happy with the decision of the Tribunal; it had not understood his case properly.  He said the Tribunal used documents and he was never given a copy so that he could comment.  On questioning, he was unable to identify what documents he referred to.  He referred to the fact that he and his wife had two children in Australia, and said he could not return because of fear for his life in India.  He said that recently his brother and sister went to their father’s funeral and police came there to look for him.

8                     The wife also said she was not happy with the Tribunal’s decision and that they had not understood her case properly.  Again she referred to the circumstance of her children being educated in Australia. 

9                     Neither the husband nor the wife were able to advance any proper basis on which the Tribunal’s decision could be quashed, even if time were to be extended.  I therefore find there is no proper basis for extending the time, and each application will be dismissed with costs.

Associate:

Dated:              17 December 2003