S267 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1442

FEDERAL COURT OF AUSTRALIA

S267 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1442 S267 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 370 of 2003 BRANSON J 3 DECEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 370 of 2003

BETWEEN: S267 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 3 DECEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The prosecutor/applicant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 370 of 2003

BETWEEN: S267 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 3 DECEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Before the Court is an application filed in the High Court on 16 August 2002 and remitted to this Court on 6 February 2003. The applicant sought the issue by the High Court of an order nisi for constitutional writs including a writ of certiorari to quash a decision of the Refugee Review Tribunal ('the Tribunal') made on 12 July 2001. The decision of the Tribunal affirmed a decision of a delegate of the Minister refusing to grant protection visas to the applicant and members of his family. The other relief sought by the draft order nisi was dependent upon the grant of a writ of certiorari setting aside the decision of the Tribunal. 2 A solicitor, Mr Ian Graham, swore an affidavit in support of the application to the High Court. The affidavit refers to three requests made to the Minister to exercise the powers given to the Minister by s 417 of the Migration Act 1958 (Cth) ('the Act'). No explanation is given in the affidavit for the delay in applying to the High Court other than to the extent that it might be implied that the consecutive requests to the Minister to exercise power under s 417 of the Act are offered as the explanation. The draft order nisi does not seek an extension of time to enable the prosecutor to make the application for constitutional relief. 3 A notice of motion has been filed in this Court today seeking an extension of time. Additional affidavits have also been filed today supplementing the evidence with respect to the delay in making the application to the High Court. Mr Graham in a supplementary affidavit deposes to an understanding that the Minister is not generally disposed to consider applications under s 417 of the Migration Act while persons are seeking judicial review of decisions of the Tribunal. The applicant and his wife have deposed to having received advice from their then migration agent after the publication of the decision of the Tribunal. Each of them deposes to having received advice that an approach to the courts was not recommended because: '… if the Court refuses, and you lost the case in Court, the Minister would not feel disposed to look at your case and you wouldn't have any chance. Many people apply to the Court and it is not advisable.' 4 In conformity with other decisions of the Court (Applicant M216 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931; Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1266; Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576) I proceed on the basis that the applicant requires an extension of time to bring the present application and that the applicable time limit for an application for writ of certiorari is fixed by O 55 r 17 of the High Court Rules with the power to extend that time being given by O 60 r 6 of the High Court Rules. 5 In my view the evidence discloses that the applicant accepted the advice of his then migration agent not to seek judicial review of the decision of the Tribunal. The advice was apparently offered on the basis of an opinion held by the migration agent that the applicant faced a greater prospect of success in pursuing his desire to remain with his family in Australia if he sought a favourable decision from the Minister than if he sought judicial review of the decision of the Tribunal. It appears that three separate applications were made to the Minister seeking an exercise of the Minister's powers under s 417. It must be assumed that at a later time the applicant received legal advice that an application to the High Court would be in his interests and that of his family. It has not been disclosed when the applicant received that advice. The application to the High Court was made within a matter of weeks of the applicant learning that his third application to the Minister would, like the previous two applications, fail. 6 The time limit set by O 55 r 17 for an application for a writ of certiorari is six months from the date of the judgment or order sought to be quashed. Against that time frame the delay in making the present application is substantial. 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 it 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 brought 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.' 7 The delay in this case, although less than that considered by McHugh J in Ex parte Marks, has not in my view been adequately explained. Indeed it seems that a deliberate decision was earlier made to eschew judicial review in preference for an alternative form of potential relief. As von Doussa J observed in Applicant A2 of 2002 at [9]-[10], an approach to the Minister to exercise powers under s 417 indicates an acceptance of the decision of the Tribunal and is not an explanation which will ordinarily justify the grant of an extension of time. 8 I am strengthened in my view that the applicant should not be granted an extension of time by the fact that the only ground of review sought to be pursued if an extension of time were granted relies upon an issue not relied upon before the Tribunal. Before the Tribunal the applicant was represented by a migration agent who may be assumed to have been familiar with the terms of the Refugees Convention and the authorities which touch upon its proper construction. 9 Mr Killalea, counsel for the applicant before this Court, argued that the Tribunal did not, but should have, given consideration to whether the applicant would suffer persecution in the Ukraine by reason of his membership of a particular social group. That social group, Mr Killalea contended, was comprised of people living in the Ukraine who are seen to be wealthy or potentially wealthy but who are less powerful than other wealthy people in the Ukraine. No evidence or other material, whether before the Tribunal or not, has been identified which would provide support for a contention that the characteristics referred to set a group apart in Ukrainian society (see Minister for Immigration & Multicultural Affairs v Zamora [1998] FCA 913; 51 ALD 1). It is far from self-evident that such a group would be recognised in Ukrainian society as a group identifiable within the society. 10 Having regard to the unsatisfactory explanation offered for the delay in making the application to the High Court and the fact that a favourable grant of relief would be unlikely if an extension were granted, the application for an extension of time is refused. 11 The application is dismissed. The prosecutor/applicant will pay the costs of the respondent. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.