FEDERAL COURT OF AUSTRALIA

Applicants M67/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1912

Applicants M67/2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 1041 affirmed

Hall v The Nominal Defendant (1966) 117 CLR 423 cited

NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 297 cited

Decor Corporation v Dart Industries Inc (1991) 33 FCR 397 cited

APPLICANTS M67/2004 v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

NO. VID 735 OF 2005

HEEREY J

15 DECEMBER 2005

MELBOURNE

THE COURT ORDERS THAT:

1. Leave to appeal refused.
2. The applicants pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicants seek leave to appeal from a judgment of Reithmuller FM given on 13 July 2005; Applicants M67/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1041.  The Magistrate refused an extension of time for the applicants to seek review of a decision of the Refugee Review Tribunal.  Counsel for the Minister submits, and I agree, that the judgment of the Magistrate was interlocutory, both because it was a refusal of an application for an extension of time (see Hall v The Nominal Defendant (1966) 117 CLR 423) and because it was an order dismissing that application for an order nisi (see NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297).

2                     Accordingly, the applicants have to show whether the decision was attended with sufficient doubt to warrant it being reconsidered on appeal and whether substantial injustice would result if leave were refused supposing the decision to be wrong: Decor Corporation v Dart Industries Inc (1991) 33 FCR 397.

3                     The applicants arrived in Australia as long ago as 1995, the male applicant on 10 September, and his spouse on 10 October in that year.  They were refused protection visas and in the following year they applied for a review of that decision by the Tribunal.  On 18 December 1997 the Tribunal affirmed the decision of the Minister’s delegate.  The applicants then sought judicial review in the Federal Court, which was dismissed by consent on 26 May 1997.  The present proceedings were not commenced until 5 July 2004 when the applicants sought writs of prohibition, certiorari and mandamus and an injunction in the High Court.  Those proceedings were remitted to the Federal Court and subsequently by that Court to the Magistrates Court.

4                     In their proposed notice of appeal the applicants simply assert there was an error of law in the Magistrate’s decision constituting a jurisdictional error. It was said that the error was in the Court not granting an extension of time and it should have taken into account the fact that it would cause no prejudice to the Minister.  Later the applicants filed contentions which in effect summarise the case they put before the Tribunal and criticised the factual conclusions of the Tribunal. 

5                     Turning to the Magistrate’s decision, his Honour noted that an enlargement of time is not automatic and that the case would need to be exceptional before the time for commencing proceedings could be enlarged by many months.  In the present case, as he noted, the enlargement sought is for many years. Further, the applicants had already brought proceedings in the Federal Court which were discontinued.  To the Magistrate this seemed to militate strongly against granting an extension of time as the applicants had not only had the opportunity but had taken up the opportunity to bring proceedings within the relevant time frames.

6                     The Magistrate noted that the applicants’ daughter, who appeared then as she did before me, said that the applicants may have been misled by the nature of the visas that they held during the course of proceedings in the past.  However, it appeared that the applicants had had a temporary visa until July 1996.  This temporary visa was then refused and they were thereafter on bridging visas.  It also appeared that in the interim the male applicant had pursued a family visa in judicial review proceedings which finally ended in June 2002. 

7                     The Magistrate noted that the decision by the Tribunal was largely one based on the merits of the case.  The Tribunal had found some of the claims to be implausible or fabricated and in substance they did not accept as credible the claims made by the applicants. The applicants were effectively seeking to challenge those factual findings.

8                     I interpolate here that I have read the decision of the Tribunal. It amounts to detailed and firm findings of fact rejecting the applicants claim to fear of persecution on the ground of imputed support for the Liberation Tigers of Tamil Eelan.  The Tribunal’s decision was very much one of fact, and there is a firm finding that significant parts of the applicants’ case were fabricated.

9                     To return to the Magistrate’s decision, he noted that the applicant’s daughter had suggested that the applicants were not given an opportunity to be heard by the Tribunal.  However, the Magistrate observed that the decision of the Tribunal set out that there were in fact written submissions and an oral hearing.  There was reference by the daughter to misinterpretations but there was no material before the Magistrate to indicate that this was the case or how it had impacted on the decision.  The Magistrate perused the document filed in the High Court and observed that there was no particularised claim of judicially reviewable error that referred to the facts or circumstances of the decision-making process.  All it listed was a catalogue of possible errors or areas of errors that a lawyer may look to when reviewing the papers in the case.

10                  In conclusion, the Magistrate was not satisfied that an extension of time ought to be granted.  He was not satisfied that the applicants had established an arguable case, nor that there should be found an extension of time for the applicants to make inquiries. 

11                  I am not persuaded that any error has been shown in the Magistrate’s exercise of his discretion to refuse an extension of time.  Before me, the applicants’ daughter contended that her father’s life was in danger in Sri Lanka and that the Tribunal did not give enough consideration to his case. 

12                  However, I can only say that I agree with the Magistrate’s assessment of the reasons of the Tribunal and I agree that no arguable case showing jurisdictional error has been made out.  The major factors in this case are the very long time that has elapsed and the fact of an abandoned judicial review application taken many years ago.

13                  I refuse leave to appeal against the decision of the Magistrate and order the applicants pay the respondent’s costs.

Associate:

Dated:              15 December 2005