FEDERAL COURT OF AUSTRALIA

Applicant A166 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 407

APPLICANT A166 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER, REFUGEE REVIEW TRIBUNAL & THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S.734 of 2003

MANSFIELD J

26 MARCH 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay to the first respondent the costs of the application.

3.         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 matter was instituted in the High Court of Australia on 24 March 2003.  It sought orders by way of mandamus, prohibition and certiorari in respect of the decision of the Refugee Review Tribunal (the Tribunal) given on 19 February 2002.  The Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act).  The application was remitted to this Court for further hearing and determination by order made on 11 June 2003. 

2                     It is acknowledged on behalf of the applicant that the application is outside the time permitted by the High Court Rules 1952 (Cth) (High Court Rules) for applications in the nature of certiorari and mandamus.  The relevant High Court Rules are those prescribed under O 55, r 17 and r 30.  I have determined in Applicants A64 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1142, that a proceeding which has been remitted to this Court by the High Court for further hearing and determination nevertheless must have been instituted within the time limits prescribed by the High Court Rules.  It is necessary for the applicant to seek an extension of time within which to have instituted the proceedings. 

3                     The applicant has applied by motion of 18 March 2004 for orders extending the time to bring the application.  In my view, the extension of time sought must be refused.  There are two reasons for that conclusion.

4                     The first is that there is no material upon which I am satisfied that there is any arguable basis for the applicant to succeed in his application for the prerogative relief which he seeks.  Accordingly, an extension of time, if granted, would be pointless.  His counsel has acknowledged that the Tribunal determined the claim for a protection visa adversely to him, in large measure based upon an assessment of the reliability of the claims which he asserted. 

5                     For instance, the Tribunal at paragraph 47 and 48 of its reasons said:

‘I do not accept that the applicant told the truth in his written claims or during the hearing and I do not accept that he was ever arrested by police because of his membership of the AISSF [All India Sikh Students Federation] or because of suspicions that he was involved with Sikh militants or for any other reason.  I am satisfied that the applicant has fabricated these claims in order to extend his stay in Australia.  I give my specific findings on the applicant's claims and evidence.

In summary, I do not accept the applicant's claims because they are contrary to the independent information set out above, because the applicant did not provide any documentary or other in support for his claims, because his claims at the hearing differed from details provided in his protection visa application, because he raised new claims at the hearing without any convincing reason why he had not previously mentioned the claims and because the applicant's behaviour is inconsistent with a genuine fear of persecution.’

6                     The Tribunal then dealt with each of those points explaining in some detail why it formed those views.  The Tribunal concluded:

‘I reject the applicant's claims to have been of adverse interest to the Indian authorities by reason of his political affiliations or his political opinions or his religion or for any other convention reason.  I am satisfied that the applicant has fabricated his claims to a fear of convention-related persecution.  I find that the applicant does not have a well-founded fear of persecution for any convention reasons if he were to return to India.’ 

7                     Nothing has been put which could indicate jurisdictional error on the part of the Tribunal in reaching those conclusions.  It is necessary for jurisdictional error to be demonstrated before the applicant could establish an entitlement to the orders which he seeks:  Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.  The grounds of complaint in the affidavit in support of the application are general in nature.  Despite those asserted grounds, counsel today has not sought to support any of them by reference to any part of the reasons for decision of the Tribunal.  No additional material has been adduced to support any of them.  Accordingly, I am not satisfied that there is any prospect of the applicant succeeding in his application even if an extension of time were granted. 

8                     The second reason for refusing the application is that, in my view, there is no satisfactory explanation for the delay in bringing it.  I acknowledge that the delay is not a very long one.  The explanation which is proffered is contained in an affidavit of the applicant affirmed on 9 March 2004.  It proffers the explanation that the applicant was advised by his migration agent that, following the Tribunal's decision, the next step was to write a letter to the respondent (presumably a letter seeking the respondent’s intervention under s 417 of the Act) and that such a letter was subsequently written with a follow-up letter to the respondent.  He then deposes to the fact that in about August 2003 he was informed that the respondent had declined his request by those letters.  I do not think that course of events can provide an explanation for the applicant's delay in this matter because in fact his application to the High Court was made in March 2003, some considerable time before the outcome of those requests to the respondent.  The outcome of those requests cannot therefore have been the reason for the delay in the institution of these proceedings.  There is no other explanation for the delay which his counsel put forward on his behalf. 

9                     For those two reasons, the application for an extension of time should be refused.  As the application is out of time in respect of the relief claimed by certiorari and mandamus, that relief is not available.  The claim for prohibitory orders is therefore pointless.  In those circumstances, it seems to me that the application itself should be dismissed.  His counsel, in another matter this morning, indicated then that there was no basis upon which an application in similar circumstances could be proceeded with.  I assume in the absence of further and different submissions from counsel, which I have invited, that there is no different submission in this matter.  Consequently I propose to dismiss the application itself.  I so order.  I order that the applicant pay to the first respondent costs of the application.  There will be no order for costs of the second and third respondents.

Associate:

Dated:              8 April 2004