Applicant A184 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 408

FEDERAL COURT OF AUSTRALIA

Applicant A184 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 408 APPLICANT A184 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER, REFUGEE REVIEW TRIBUNAL & THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL S.752 of 2003 MANSFIELD J 26 MARCH 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 752 OF 2003

BETWEEN: APPLICANT A184 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 26 MARCH 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. Applicant to pay to the first respondent costs of the application. 3. No order for costs of the second and third respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 752 OF 2003

BETWEEN: APPLICANT A184 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: MANSFIELD J

DATE: 26 MARCH 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 On 1 April 2003, the applicant applied in the High Court of Australia for writs of mandamus, prohibition and certiorari in respect of a decision of the Refugee Review Tribunal (the Tribunal) made on 29 September 1999, some three and a half years before. In essence, he sought to quash the decision of the Tribunal because of jurisdictional error on its part. It is plain that it is necessary for jurisdictional error to be shown before such a collocation of orders could be secured - see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. 2 On 11 June 2003 the matter was remitted to this court for further hearing and determination. In Applicants A64 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1142, I determined that in such circumstances the time limits prescribed in the High Court Rules 1952 (Cth) (High Court Rules) for the bringing of an application of this nature applied, notwithstanding that it had been remitted to this Court for further hearing and determination. Those relevant time limits are prescribed in O 55 r 17 and O 55 r 30 of the High Court Rules. 3 Clearly, the application is outside the time permitted by those rules. If no extension of time were granted, the orders sought in the nature of certiorari and mandamus could not be pursued. The order sought in the nature of an application for an order for prohibition would be pointless. Subsequently, the applicant has sought the extension of time within which to have instituted the proceedings in the High Court. 4 In my view, the application for an extension of time must fail. It must fail for three reasons. 5 In the first place, it is necessary for the applicant to demonstrate that he has some arguable basis for asserting jurisdictional error on the part of the Tribunal if he were to succeed in being given an extension of time to bring the proceeding. No such arguable jurisdictional error has been put forward. When asked to identify the jurisdictional error asserted, his counsel referred only to a factual determination as to his nationality which the Tribunal made and with which he disagreed. A dispute of fact is not itself a matter which gives rise to jurisdictional error or could do so. The grounds upon which the prerogative orders were sought as expressed in the affidavit by which the application was brought are general in terms. Nothing has been said by his counsel to endeavour to support any of them. There is no material before me outside the reasons for decision of the Tribunal, which could support any of them. The reasons for the Tribunal's decision, upon my reading, do not on their face indicate that any of these grounds are sustainable. As I have said, counsel for the applicant has not sought to point to any part of the Tribunal's reasons to sustain any of them. 6 The second reason why the application should fail is that it is, in my view, desirable, if not necessary, for the applicant to explain in a cogent way why his application has been made belatedly. He has not done so in a satisfactory manner. There are two statutory declarations which he has filed, dated 11 March 2004 and 24 March 2004. One is more fulsome than the other but they are to the same effect. The applicant does not identify with any precision the matters which explain the delay of in excess of three years. He says that following the decision of the Tribunal, he made an application for judicial review of the decision to this Court. He did not say when, or what its outcome was. I assume the application was unsuccessful. He does not say whether any appeal was brought from that decision. He then says that: 'I made another application to the Minister for Immigration and Multicultural Affairs and after several months this application was also refused by the Minister for Immigration refusing to grant me a visa without the express reason.' 7 Again he does not provide any date as to when that application was made or when it was rejected. I assume that it was an application under s 417 of the Migration Act 1958 (Cth). To the extent that such an application has been made, it is arguable that the Court should have regard to it in considering the reason for the belated nature of the application now before the court. However, in the absence of information as to when that application was made and when it was rejected, it provides no real explanation for the very lengthy delay. The statutory declarations also refer to the applicant's mental condition since the Tribunal's decision. He claims to have been severely depressed and to have had the support of his friends in the community. He offers to provide psychiatric assessment if the Court requires it. It is not for the Court to 'require it'. He is legally represented. If he had coherent medical evidence to explain why he has been unable to give instructions over a period of some three years or so to institute proceedings, I am confident that his legal advisers would have informed him that he should produce that medical evidence. Its absence is therefore significant. Accordingly, I do not consider that the explanation for the delay is satisfactory. 8 The third reason for rejecting the application is that the applicant has apparently exhausted, to the extent that he chose to do so, the avenues for judicial review of the Tribunal's decision following its having been given on 29 September 1999. I do not know to what extent he pursued those avenues, but his statutory declarations indicate that he did so. I assume they were unsuccessful. In a sense, the application now before the Court is an attempt to relitigate what has already been litigated, and to do so by a back-door means. In my view that is a discretionary consideration which should also weigh against the grant of the extension of time which is sought. I should indicate that, even absent that consideration, I would not grant the extension of time sought for the two reasons already given, but I think that this is an additional reason why the application should not be granted. 9 Accordingly, I refuse to grant the extension of time which is sought. I think it follows that the application itself is out of time and cannot succeed. In those circumstances, I propose to dismiss the application. His counsel has acknowledged that, in the light of that ruling, the application cannot meaningfully proceed. I formally dismiss it. I order that the applicant pay to the first respondent costs of the application. There will be no order for costs of the second and third respondent. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.