FEDERAL COURT OF AUSTRALIA M206 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 24 MIGRATION – application for the issue of prohibition and certiorari against the Minister for Immigration and Multicultural and Indigenous Affairs and the Refugee Review Tribunal – application for certiorari out of time – enlargement of time in which to apply for certiorari under O 55 r 17 – whether applicant has prospects of success in obtaining an order nisi. Migration Act 1958 (Cth): s 417 High Court Rules 1952 : O 55 r 17, O 60 r 6 Applicant M 216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931, followed Gallo v Dawson (1990) 93 ALR 479, followed Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491, followed M 206 of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V 350 of 2003 GOLDBERG J 29 JANUARY 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 350 of 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT M 206 of 2002 Applicant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS First Respondent PETER H MOLONY SITTING AS THE REFUGEE REVIEW TRIBUNAL STEVE KARAS IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL Second Respondents JUDGE: GOLDBERG J DATE OF ORDER: 29 JANUARY 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of and incidental to the application. 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 350 of 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT M 206 of 2002 Applicant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS First Respondent PETER H MOLONY SITTING AS THE REFUGEE REVIEW TRIBUNAL STEVE KARAS IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL Second Respondents JUDGE: GOLDBERG J DATE: 29 JANUARY 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 28 November 2002 the applicant filed an affidavit and draft order nisi in the High Court in which he sought the issue of a writ of prohibition against the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") prohibiting him from proceeding further with "Matter No V97/07540 in the Refugee Review Tribunal". That matter was a review by the Refugee Review Tribunal ("the Tribunal") of the refusal, on 24 July 1997, by a delegate of the Minister to grant a protection visa to the applicant pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). On 4 November 1999 the Tribunal had affirmed the decision of the delegate not to grant a protection visa to the applicant. 2 The applicant also sought a writ of certiorari to quash the decision of the Tribunal, and the order made by it, on 4 November 1999. The form of the relief sought in the draft order nisi in relation to a writ of certiorari sought an order that the writ of certiorari be directed to the Minister. However, as the draft order referred to the decision and order made by the Minister on 4 November 1999, I understand the relief sought by way of certiorari to be a writ directed to the Tribunal and not a writ directed to the Minister. 3 In the draft order nisi filed with the High Court a request was made by the applicant to "accept this Out of Time decision of the Refugee Review Tribunal". I took this to be a reference to the fact that the application for a writ of certiorari was filed more than six months after the date of the Tribunal's decision. Order 55 r 17 of the High Court Rules provides that the time limit for an application for certiorari is six months after the date of the relevant judgment or order. 4 On 7 February 2003 the High Court remitted the further proceedings in the application to the Federal Court. Those further proceedings included any necessary application for an extension of time for making the application for a writ of certiorari. The High Court and, because of the remittal of the application which included the application for an extension of time, the Federal Court, can enlarge that time under O 60 r 6 of the High Court Rules: Applicant M 216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931 at [22]. 5 The applicant, a citizen of Sri Lanka, arrived in Australia on 28 July 1995. On 30 June 1997 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 24 July 1997 a delegate of the Minister refused to grant the applicant a protection visa. On 20 August 1997 the applicant sought a review of that decision in the Tribunal. 6 The applicant's claim to fear persecution upon return to Sri Lanka was based on the fact of his brother being suspected by the Sri Lankan security forces of having assisted Tamil separatists and the Liberation Tigers of Tamil Eelam ("LTTE"). The applicant said that his brother had previously been harassed and that, fearing detention, the brother and his parents left Sri Lanka in February 1997 and have since sought protection in Australia. The applicant also claimed that as a Burgher he did not believe that the Sri Lankan authorities would protect him. 7 The Tribunal found that the applicant's claims were "intermingled and connected" with those of his brother, who gave evidence before the Tribunal. The applicant's brother was a travel agent who had arranged international travel for a Tamil person who was subsequently detained and questioned at the airport in relation to involvement with the LTTE. The police accused the applicant's brother of arranging travel for other Tamil people, including Tamils associated with the LTTE, and of smuggling people out of Sri Lanka. As a result of police interest in him, the applicant's brother subsequently left Sri Lanka and came to Australia. The Tribunal found that while the security forces might suspect the applicant's brother of involvement in people smuggling, the Tribunal did not accept that he would be branded as an LTTE sympathiser. The Tribunal concluded that the applicant's brother would be of little interest to the police once he told them the truth about his helping people to travel. The Tribunal concluded that the interest shown by the police in the applicant's brother was not because he was imputed with a political opinion of support for the LTTE. 8 The Tribunal also found that there was not a real chance that the applicant would face persecution because of his connections with his brother who, the Tribunal concluded, did not have a real chance of facing persecution himself. The Tribunal gave "no credence" to the applicant's fear that he would be mistaken for his brother. The Tribunal was not satisfied that the applicant faced a real chance of persecution for a Convention reason (the Convention being the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967) in the foreseeable future should he return to Sri Lanka and it ultimately affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa. 9 On 17 December 1999 the applicant filed an application for review of the Tribunal's decision in the Federal Court. On 17 July 2000 Merkel J dismissed the application for review of the Tribunal's decision, which he had considered under the provisions of Pt 8 of the Act as it existed at that time. Merkel J noted that the claim for refugee status by the three members of the applicant's family, including the applicant, was submitted as a well‑founded fear of political persecution on the basis that a political opinion, namely being LTTE sympathisers or associates, would be imputed to them as a result of the brother's involvement with Tamil travellers. His Honour also noted that the Tribunal did not accept, at the subjective level, that the applicant's brother feared political persecution. Rather, it concluded that the applicant's brother had a fear that his brother‑in‑law and the applicant's sister might be the subject of political persecution. 10 Merkel J also noted that the Tribunal had relied on the fact that the applicant's brother's Burgher background made it even less likely that the authorities would impute a connection between him and the LTTE, absent any evidence implicating the brother with the LTTE. 11 Merkel J noted that the Tribunal's ultimate conclusion was that there was no real chance that the applicant's brother would face persecution in the foreseeable future and that, in any case, the persecution he said he feared would not be persecution for a Convention reason but prosecution for breach of a law of general application regulating the movement of Sri Lankan people within and out of the country. 12 Merkel J noted that the decision of the Tribunal was challenged by the applicant and his family on the following grounds: · The decision did not comply with s 430(1) of the Act. His Honour held that the Tribunal's reasons complied with s 430(1) of the Act. · The Tribunal failed properly to understand and apply the concept of "persecution". His Honour held that the point was without any substance or merit. · The Tribunal made a finding in respect of a particular fact, namely that the police were only investigating the brother for "people smuggling" and that fact did not exist. Merkel J found that there was no substance in this claim. · The Tribunal erred in not carrying out its speculative function in order to determine whether there was a real chance of political persecution of members of the family if they returned to Sri Lanka. This point involved the proposition that the Tribunal had not properly undertaken the "real chance" test. His Honour held that there was no basis for this contention. 13 No appeal was brought from the decision of Merkel J dismissing the application. On 24 August 2000 the applicant, his brother and parents filed an application in the High Court for an order nisi calling upon the Minister to show cause why a writ of prohibition should not be issued prohibiting him from giving effect to, or acting upon, the decision of the Tribunal, why a writ of certiorari should not be issued to quash that decision and why a writ of mandamus should not be issued against the principal Tribunal member directing him to hear and determine an application that the Tribunal's decision be revoked or varied. On 22 February 2002 the applicant and other members of his family discontinued their application filed in the High Court. 14 On 21 June 2002 the applicant wrote a letter to the Minister requesting him to exercise his powers under s 417 of the Act to grant the applicant a humanitarian visa. On 12 November 2002 the Minister wrote to the applicant's advisers informing them that he had decided not to consider exercising his power under s 417 of the Act. It was sixteen days later that the application presently before the Court was filed in the High Court. 15 In order to make an application for an order nisi for the issue of a writ of certiorari the applicant needs an order that the Court extend or enlarge the time within which he can make that application. The application for the writ of certiorari must be made within six months of the relevant decision (O 55 r 17). The grant of an extension or an enlargement of time within which to apply for the issue of a writ of certiorari is not automatically granted on application, it involves the exercise of a discretion by the Court: Gallo v Dawson (1990) 93 ALR 479 at 480; Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495. There are a number of factors which the Court may take into account in determining whether an extension or an enlargement of time should be granted. Factors which the Court has taken into account in the past include the reason for the delay in applying for the issue of the writs, the length of the delay, whether any decision was made to accept the decision of the Tribunal and whether any party may be prejudiced if the extension is granted. There is also an underlying principle that there should be an end to litigation and that the Court should seek to achieve justice between the parties. 16 In the present case, just over three years has elapsed between the date of the Tribunal's decision and the filing of the application in the High Court, although it must be remembered that an application had been filed in the High Court on 24 August 2000 which was discontinued on 22 February 2002. 17 The explanation given by the applicant for the delay is that after the Tribunal's decision was handed down he believed that he had been joined, or involved in, a representative class action in the High Court in the matter of Muin v Refugee Review Tribunal (2002) 190 ALR 601. He was then informed that he would not be accepted as part of the class action and was advised to lodge an application to the Minister to exercise his discretion under s 417 of the Act. 18 I find the applicant's explanation for the delay less than satisfactory, but the issue of whether leave should be granted can be resolved by reference to other issues. It is apparent that the applicant made a conscious decision, albeit through his advisers, to abandon the route of seeking to review the decision of the Tribunal and rather decided to follow the alternative route of lodging an application for the Minister to exercise his discretion under s 417 of the Act. 19 One of the factors to be taken into account in determining whether an application for leave to extend the time within which the application for issue of a writ of certiorari may be brought is the applicant's prospects of success in obtaining an order for the issue of the writ. The only substantive ground of error said to have been made by the Tribunal is found in the particulars set out in the draft order nisi namely: "… that persecution within the meaning of the definition of a refugee under the Refugee Convention, as incorporated by refugee to section 36(2) of the Migration Act 1958 could as a result of being a Burgher and an imputed supporter of the Tamil militant group." The applicant was given the opportunity to amend or elaborate upon the grounds of error alleged to have been made by the Tribunal but he did not do so. 20 I do not consider that the applicant has any prospects of success in making out the ground particularised in the draft order nisi. The ground relied upon by the applicant is placed under a number of heads of error including error of jurisdiction, error of law and other grounds hitherto found in s 476 of the Act. The issues of being Burgher and an imputed supporter of the Tamil militant group were addressed by the Tribunal. In particular the Tribunal noted that Mr Raveendran, the solicitor for the applicant and his family, submitted that the applicant's family: "were ethnic burghers and as such were part of an unwanted minority, without authority, albeit burghers as a group did not suffer positive discrimination in Sri Lanka. Mr Raveendran said that their claims were not made on the basis of their ethnicity, but that their status as burghers was part of the background against which their claims should been assessed." Mr Raveendran submitted to the Tribunal that the applicant and his family's claims should be viewed on the basis that they feared persecution because the Sri Lankan security forces would impute pro‑LTTE political opinions to them. 21 The Tribunal also noted country information to the effect that there was an absence of reports about discrimination against Burghers and that any loss of position by Burghers in Sri Lankan society was more due to long‑term historical developments than to a specific discriminatory policy. 22 The issue of persecution of both the applicant's brother and the applicant, the latter through his association with his brother and on the basis of his brother's imputed support of Tamil militant groups, was not a matter which arose because the Tribunal rejected the proposition that the applicant or his brother would be imputed with a political opinion as a supporter of, or a sympathiser with, the LTTE. The ground of error relied upon by the applicant cannot be sustained and has no prospects of success. 23 It therefore follows that the application for an extension of time with which to file the application for a writ of certiorari should not be granted. My conclusion that the applicant has no prospects of success on the substantive issue before the Court also resolves the issue as to whether there should be the grant of an order nisi or the making absolute of any order nisi for a writ of prohibition. I do not consider that there are any grounds which would warrant the issue of such a writ. 24 The Minister also submitted that the earlier application for judicial review, made to the Federal Court and dismissed by Merkel J on 17 July 2000, had the result that the applicant was precluded from bringing fresh proceedings to challenge the Tribunal's decision, at least in relation to grounds of review which were then available under Pt 8 of the Act as it existed at the time of the Tribunal decision. The Minister relied upon the principles of res judicata, issue estoppel and Anshun estoppel. 25 The applicant appeared in person, albeit assisted by his brother, and was not legally represented. I did not have the benefit of argument or submissions by the applicant in relation to the issues of res judicata, issue estoppel and Anshun estoppel and having regard to my conclusion that the application is bound to fail on substantive grounds, I do not need to consider these matters further. 26 The application will therefore be dismissed with costs. I certify that the preceding twenty‑six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 29 January 2004 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr C Horan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 December 2003 Date of Judgment: 29 January 2004