FEDERAL COURT OF AUSTRALIA Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931 MIGRATION – protection visa – decision to refuse affirmed byRefugee Review Tribunal – High Court application for constitutional writs, declaratory and injunctive relief remitted to Federal Court – no explicit reference to time limits in High Court Rules made in Order for remitter – whether any time limits applicable – whether time should be enlarged High Court Rules O 55 r 17, O 55 r 30, O 60 r 6 Federal Court Rules Order 51A, O54A, 054B John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625 followed Re Ross; ex parte The Australian Liquor Hospitality and Miscellaneous Workers Union (2001) 108 FCR 399 followed Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 followed Hughes v National Trustees Executors & Agency Co of Australia Ltd [1978] VR 257 followed APPLICANT M216/2002 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ORS V312 of 2003 HEEREY J 5 SEPTEMBER 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V312 OF 2003 ON APPEAL FROM THE REFUGEE REVIEW TRIBUNAL BETWEEN: APPLICANT M216/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 5 SEPTEMBER 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The application is dismissed with costs. 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 V312 OF 2003 ON APPEAL FROM THE REFUGEE REVIEW TRIBUNAL BETWEEN: APPLICANT M216/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HEEREY J DATE: 5 SEPTEMBER PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Before the Court is an application filed in the High Court on 10 December 2002 and remitted to this Court on 7 February 2003. The applicant seeks constitutional writs and declaratory and injunctive relief in relation to a decision of the Refugee Review Tribunal (the Tribunal) handed down on 8 August 1996. I have heard argument on preliminary issues as to (i) whether an enlargement of time is necessary and (ii) if so, whether the enlargement should be granted. 2 The person referred to in these reasons as "the applicant" is the first of four persons with the same surname whose names appear as "Prosecutors/Applicants" in the heading of draft order nisi filed in the High Court. I infer that the second to fourth persons are respectively the wife and children of the applicant. The applicant's wife and children were not included in his application for refugee status before the Tribunal. The applicant's wife lodged an application for refugee status in her own right, in which the elder child was included. The younger child was born after the applicant's application to the tribunal. Not being a subject of the Department's primary decision, the younger child's case could not be considered by the Tribunal. I shall therefore treat this case as the application of the applicant alone. Earlier Proceedings 3 The applicant is a non-citizen and an ethnic Tamil national of Sri Lanka. He was born in 1952. 4 He claimed that he had become a supporter of the Liberation Tigers of Tamil Eelam (LTTE). He had completed an apprenticeship as a printer and had printed and distributed some literature for the LTTE in Colombo. In November 1980 he was taken into custody by the police and detained for four days and severely tortured for nearly 12 hours. After his release he continued to do printing for the LTTE. He experienced general harassment in everyday life along with other Tamils in Colombo. He left Sri Lanka on 2 July 1981 after paying 15,000 rupees to an agent for a passport and visa. 5 He went to West Germany and unsuccessfully sought asylum. He lodged an appeal but did not await its outcome because he heard many appeals were being rejected. In July 1983 he went to Switzerland. He lodged another application for refugee status in that country. This application was also refused. He lodged an appeal against that decision but later withdrew it. He was then permitted to stay in Switzerland using a residence permit renewable annually. In 1987 he formed a relationship with a fellow Tamil. The couple's elder child was born in May 1988. They married in February 1989. 6 While the applicant was in Switzerland he helped local LTTE militants by printing and distributing their publications, by donations and by assisting in the organisation of cultural functions and a demonstration. He was threatened by the rival Tamil group People's Liberation Organization of Tamil Eelam (PLOTE) when he refused to give money to them. 7 The applicant obtained a passport in 1991 from the Sri Lankan Embassy in Switzerland. He made many journeys within Europe using this passport, and one to Australia for about 10 days at the end of 1991, but has never returned to Sri Lanka. He did not apply for refugee status in any of the countries he visited because he thought he would be refused as he had been in Germany and Switzerland. The applicant left Switzerland in January 1995. Since his departure his Swiss entry permit has expired and he cannot return there. 8 On 23 January 1995 the applicant entered Australia on a subclass 673 family visitor visa, his wife having arrived earlier. A second child was born to the couple in Australia in December 1995. The applicant lodged an application for a protection visa on 2 February 1995. That application was refused on 14 September 1995. The delegate's decision was confirmed by the Tribunal on 8 August 1996. 9 The Tribunal had reservations about the applicant's credibility in relation to some aspects of his application. The Tribunal did not accept that the applicant faced a real chance of persecution by reason of his association with LTTE before he left Sri Lanka in 1981. His only association with the LTTE was to print and distribute some literature for them. The Tribunal accepted that the applicant had been detained and tortured in November 1980 and that this was an instance of persecution. However the applicant had been released after a short time, had never since been detained or otherwise troubled by the authorities and had been subsequently employed in the government printing offices. He was able to obtain a new passport in 1991. 10 The Tribunal found that the applicant's association with the LTTE in Switzerland was minor, non-violent and lawful. It accepted that the PLOTE might have attempted to extort money from the applicant and his family. However the Tribunal rejected the applicant's claims that PLOTE members had ever seriously threatened to bring his LTTE connections to the attention of the Sri Lankan authorities. In any event, there was nothing to report, since his activities in Switzerland had been minimal and peaceful. In the Tribunal's view, it was difficult to see that the Sri Lankan authorities would be interested in such information. The PLOTE evidently had not reported the applicant to the Sri Lankan authorities at the time he obtained his passport in 1991. 11 The Tribunal concluded that the applicant, as a Tamil civilian in Columbo, would not generally be subject to anything worse than short-term detention and possible ill-treatment short of persecution. The applicant did not meet the profile of those Tamils in whom the authorities might take a particular interest. 12 In an affidavit sworn on 10 December 2002 in support of his High Court application the applicant deposed that he did not seek review of the Tribunal's decision at the time because of "financial difficulties". He did not elaborate on the nature of those difficulties. 13 On 22 October 1996 the applicant was granted a Class TT subclass 435 Sri Lankan visa valid until 31 July 1998. On the latter date he applied for a Class AG sub class 806 visa claiming to be a special need relative of his sister. 14 A delegate on 13 February 2002 refused to grant the special need relative visa and on 12 June 2002 the Migration Review Tribunal (MRT) affirmed that decision. 15 On a date which does not emerge from the material, the applicant lodged an application for review by the Federal Court of the decision of the MRT but on 12 November 2002 he withdrew that application "because of financial difficulties". 16 As already mentioned, on 10 December 2002 the applicant filed an application for constitutional writs and other relief in the High Court. The draft order nisi included an order "that time be enlarged to permit the prosecutor to make the present applications for prerogative relief". 17 On the present hearing the applicant foreshadowed his intention to seek leave to amend the grounds raised in the draft order nisi by adding the grounds that there was jurisdictional error by the Tribunal in not considering (a) that extortion by PLOTE of funds from the applicant in Switzerland was or could be persecution for one of the reasons specified in the Refugees Convention, (b) that short and possibly repeated detention of the applicant involving ill treatment would be or could be persecution for a Convention reason, (c) the question whether the applicant had a well-founded of persecution by the LTTE, this being a relevant matter because of his claims that his co-operation with the LTTE in Sri Lanka and Switzerland had been obtained under threat and (d) whether the previous conditional release of the applicant by the authorities would affect the risk of him being persecuted were he to be subject to "short-term detention" as a Tamil. 18 On 7 February 2003 Hayne J ordered that further proceedings in the application be remitted to the Federal Court and that "the application proceed in that Court as if the steps already taken in the application in this Court had been taken in that Court". Further procedural directions were given. The order did not explicitly state, as has been done in some other remitter cases, that the High Court Rules should apply. Is an enlargement of time necessary? 19 It is common ground that because the application for an order nisi was made after commencement of the amendments enacted by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) the Tribunal's decision is governed by the privative clause amendments and in particular s 474 of the Migration Act (1958) (Cth), (the Act). However, because the present application seeks review of a decision made before 27 September 2001, the thirty-five day limitation period prescribed by s 486A of the Act does not apply. 20 The High Court Rules contain time limits for applications for certiorari (six months, O 55 r 17) and mandamus (two months, O 55 r 30). There is a general discretion to enlarge time: O 60 r 6. 21 Relevantly for present purposes the Federal Court Rules contain no express time limit provisions. Order 51A, dealing with matters remitted by the High Court, says nothing about time, nor does O 54A which deals with applications under the jurisdiction conferred by s 39B of the Judiciary Act 1903 (Cth), nor O 54B dealing with applications under the Judiciary Act in relation to decisions under the Migration Act. 22 In my opinion however the High Court time limits are applicable. The substantive matter which was remitted included an application for enlargement of the time fixed by the High Court Rules. The relief sought can be characterised as not just certiorari, but certiorari on an application filed more than six months after the impugned decision. The same analysis applies, mutatis mutandis, in the case of mandamus. 23 It is now accepted that a limitation provision is to be characterised as part of the definition of a substantive right. In John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625 Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ said (at [99]) that "…matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure." Their Honours then said (at [100]), in relation to limitation periods, "…the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance, not procedure…" 24 In Re Ross; ex parte The Australian Liquor Hospitality and Miscellaneous Workers Union (2001) 108 FCR 399 a Full Court of the Federal Court was dealing with an application to the High Court for constitutional writs which had been remitted by that Court. The question arose as to whether the application had been brought within time and whether time should be enlarged. The Full Court said (at [39]): "A combination of s 23 of the Federal Court of Australia Act and O 60 r 6(1) of the High Court Rules (with its specific reference to "A Court") appears to give this Court power to enlarge the times fixed by O 55 of the High Court Rules if it should be appropriate to do so. Alternatively, the effect of s 38 (2) of the Federal Court of Australia Act is to fill any gap in the Federal Court Rules by making applicable the High Court rules. On either view, this Court can exercise the power to enlarge the time." 25 It was thus implicitly accepted that, unless the time fixed by the High Court Rules was enlarged, the time limit prescribed by those rules would be a bar to an application remitted to the Federal Court. Should time be enlarged? 26 In Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 at [16] McHugh J said "Independently of the merits of the case, I find in 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. …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 put 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." 27 In the present case the delay is more than six years. There is no suggestion that the Tribunal, the Minister or any other public body contributed to the delay. The vague references to "financial difficulties" are completely unparticularised. 28 Even if the application had, on its face, strong merits, I think the kind of considerations stated by McHugh J would warrant refusal of enlargement. In any case, to the extent that merits are relevant (see Hughes v National Trustees Executors & Agency Co of Australia Ltd [1978] VR 257), it was plainly open to the Tribunal to conclude that someone who had been absent from Sri Lanka for fifteen years and who, on his own story, had only engaged in minor, non-violent and lawful political activity in a foreign country since then, would not be at risk of persecution on his return. 29 The application will be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 4 September 2003 Counsel for the Applicant: A Krohn Solicitor for the Applicant: K P Aravindan Counsel for the Respondent: C Horan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 31 July 2003 Date of Judgment: 5 September 2003