FEDERAL COURT OF AUSTRALIA Kumari, in the matter of an application for Writs of Prohibition, Mandamus & Certiorari against the Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 882 IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION, MANDAMUS AND CERTIORARI AGAINST THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND GRAHAM FRIEDMAN, MEMBER SITTING AS THE MIGRATION REVIEW TRIBUNAL; EX PARTE WICKRAMA ARCHCHIGE HEMANTHA PRADEEPA KUMARI V 301 of 2003 GRAY J 30 JUNE 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 301 of 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA EX PARTE: In the matter of an application for Writs of Prohibition, Mandamus and Certiorari against: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT GRAHAM FRIEDMAN, MEMBER SITTING AS THE MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT WICKRAMA ARCHCHIGE HEMANTHA PRADEEPA KUMARI APPLICANT/PROSECUTOR JUDGE: GRAY J DATE OF ORDER: 30 JUNE 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application to enlarge the time for the commencement of the proceeding in the High Court of Australia for certiorari and mandamus be refused. 2. The application be dismissed. 3. The applicant pay the respondents' costs of the proceeding, including the costs incurred in the High Court of Australia. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 301 of 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA EX PARTE: In the matter of an application for Writs of Prohibition, Mandamus and Certiorari against: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT GRAHAM FRIEDMAN, MEMBER SITTING AS THE MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT WICKRAMA ARCHCHIGE HEMANTHA PRADEEPA KUMARI APPLICANT/PROSECUTOR JUDGE: GRAY J DATE: 30 JUNE 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 In August of 2002, the applicant applied to the High Court of Australia, seeking the constitutional remedies of certiorari, prohibition and mandamus, with respect to a decision of the Migration Review Tribunal ("the Tribunal"), made on 23 March 2000. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, refusing to grant to the applicant a visa of the kind known as a Change in Circumstance (Residence) (Class AG) visa, subclass 806. 2 So far as the application for certiorari was concerned, it was made well outside the time limited by O 55 r 17 of the High Court Rules, that time being six months from the date of the decision. Similarly, so far as the application for mandamus was concerned, it was made well outside the time limited by O 55 r 30 of the High Court Rules, which is two months from the date of refusal. Of course, in each case, there is a power to enlarge the time limited by the High Court Rules. The High Court Rules appear to contain no provision limiting the time in which an application for prohibition might be made, probably because originally prohibition was a remedy sought with respect to a proceeding that had not yet been completed, so that a time limit was considered to be unnecessary. 3 On 7 February 2003, the High Court remitted the application to this Court, to be heard and determined. As a consequence, it falls to this Court to decide whether the time limit should be enlarged. The respondent has sought an order today dismissing the proceeding on the basis that the time limits ought not to be enlarged and on the basis that the proceeding is in any event without hope of success. As a consequence, I have invited the solicitor appearing for the applicant to indicate to me what arguable case he would seek to put in relation to the decision of the Tribunal. To endeavour to understand the argument put on behalf of the applicant, it is necessary to state briefly the circumstances of the decision itself. 4 At the time when the Tribunal dealt with the application, item 806 in Sch 2 to the Migration Regulations 1994 (Cth) contained, among the criteria to be satisfied by an applicant for the relevant visa at the time of application, the criterion in item 806.212(a), namely that the applicant satisfies Sch 3 criterion 3002. Schedule 3 contains several criteria, described as "Additional criteria applicable to unlawful non-citizens and certain bridging visa holders". Criterion 3002 is: "The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001 (2))." This requires resort to the definition of the "relevant day" in item 3001. That is a complex definition but, so far as it relates to the present case, the relevant day is the last day when the applicant held a substantive visa, because the applicant ceased to hold a substantive visa after 1 September 1994. See item 3001(2)(c)(i) and (iii). 5 The Tribunal found as a fact that the applicant had not held a substantive visa since 31 July 1997 and she had not applied for the visa with respect to which the Tribunal was considering her application until 30 November 1998. Accordingly, as this was more than 12 months after she ceased to hold a substantive visa, the Tribunal found that the applicant did not meet the criterion in item 3002 of Sch 3 to the Migration Regulations and therefore did not satisfy the criterion in item 806.212(a) in Sch 2. On that basis, she could not be granted a subclass 806 visa. 6 The applicant's solicitor does not contend that the Tribunal made any error of fact in relation to those findings. Rather, he contends that the Tribunal ought to have directed its attention to the question whether the application was made "validly" for the purposes of the criterion in item 3002. Alternatively, or perhaps cumulatively, attention is drawn to the criterion in item 3004, which appears to provide a regime somewhat more discretionary than that in 3002, where it is applicable. 7 In my view, neither of these arguments can possibly succeed. Even if the Tribunal did not specifically direct its attention to the issue of whether the application was validly made, for it to have done so could have made no difference to the outcome. Either the application, if validly made, was not made within 12 months, in which case the Tribunal was correct to say that the applicant failed to satisfy criterion 3002 or, if the application was not validly made at all, the Tribunal had no power to consider it, and could not possibly have granted the applicant a visa in any event. Nothing in item 806 of Sch 2 made applicable to the applicant the criterion in 3004 of Sch 3. Item 3004 does not contain a provision overriding or detracting from item 3002. It was item 3002 with which the applicant had to comply. It is not to the point to say that if another criterion had been applicable, she may have been able to satisfy it. The other criterion was not applicable at all. Accordingly, the Tribunal was bound to reject the applicant's application and no challenge to its decision could possibly succeed. 8 It follows that I should refuse to grant the enlargement of time required for the applicant to apply to the High Court for certiorari and mandamus. The solicitor for the applicant has urged me to leave open to the applicant the right to apply for prohibition. I cannot see that any useful point would be served by doing that, since the applicant cannot, in any event, succeed in overturning the decision of the Tribunal. Accordingly, the proper order is to refuse the necessary enlargement of time and to dismiss the proceeding. In accordance with the usual order that costs follow the event, the applicant should be ordered to pay the costs of the respondents. 9 The orders of the Court will be: 1. The application to enlarge the time for the commencement of the proceeding in the High Court of Australia for certiorari and mandamus be refused. 2. The application be dismissed. 3. The applicant pay the respondents' costs of the proceeding, including the costs incurred in the High Court of Australia. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 27 August 2003 Counsel for the Applicant: TA Fernandez Solicitor for the Applicant: Ruwan Samarakoon Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 June 2003 Date of Judgment: 30 June 2003