FEDERAL COURT OF AUSTRALIA MZWKR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1494 MIGRATION – protection visa – applicant sought "refugee status" in 1991 – application refused by delegate of respondent Minister – applicant did not seek merits review but was not apprehended until 2004 – application for review of delegate's decision brought thirteen years out of time – appeal from decision of Federal Magistrate dismissing application Migration Act 1958 (Cth) s 417(1) Re Commonwealth of Australia: Ex parte Marks (2000) 177 ALR 491 considered MZWKR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V1120 of 2004 WEINBERG J 17 NOVEMBER 2004 MELBOURNE (VIA VIDEO LINK TO BAXTER & SYDNEY) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V1120 OF 2004 BETWEEN: MZWKR APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: WEINBERG DATE OF ORDER: 17 NOVEMBER 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for an extension of time within which to file a notice of appeal be refused. 2. The applicant pay the respondent's 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 V1120 OF 2004 BETWEEN: MZWKR APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: WEINBERG DATE: 17 NOVEMBER 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application for an extension of time within which to file and serve a notice of appeal from a judgment of a Federal Magistrate. On 19 August 2004, his Honour dismissed an application for judicial review of a decision of a delegate of the respondent Minister made as far back as 21 November 1991, refusing to grant him what was then known as "refugee status". An extension of time is required because the applicant did not file a notice of appeal within the time limited by O 52 r 15 of the Federal Court Rules. background 2 The applicant is an Indian national, presently 43 years of age. He arrived in Australia on 6 November 1986, on a tourist visa which was valid for only one week. However, he overstayed his visit and, on 22 August 1990, he applied for what was known, at that time, as "refugee status". He also for what was then known as a "domestic protection temporary entry permit". 3 On 21 November 1991, a delegate of the Minister refused both applications. The applicant was advised of his right to seek merits review in the Refugee Status Review Committee. However, for reasons that are not entirely clear, he did not seek such review. It appears that in 1998, he applied, under the provisions of the Migration Act 1958 (Cth) ("the Act"), for a protection visa. That application was rejected. Once again, the applicant did not avail himself of any statutory right that then existed to seek merits review. 4 On 16 February 2004, the applicant was apprehended and placed in immigration detention. He has been in custody since that date. On 19 February 2004, the applicant sought to have the Minister exercise her discretion under s 417(1) of the Act. That subsection permits the Minister to substitute "for a decision of the Tribunal" (the Refugee Review Tribunal) under s 415, another decision, being a decision that is more favourable to the applicant". Self-evidently, the application to the Minister was misconceived, as there had never been any decision by the Refugee Review Tribunal. 5 On 24 February 2004, the applicant filed an application for judicial review under s 39B of the Judiciary Act 1903 (Cth). The decision sought to be reviewed was that of the delegate on 21 November 1991 to refuse the applicant "refugee status". In the application for judicial review, the applicant asserted that the delegate had failed properly to consider his claim that his father had been murdered in India "for political and caste reasons". 6 On 30 April 2004, in response to that application, Jacqueline Davis, a solicitor employed by the Australian Government Solicitor, affirmed an affidavit to which she exhibited a copy of the delegate's statement of reasons. That statement of reasons summarised the applicant's claims as follows: "(1) In 1989, his father was hacked to death by villagers and he suspects that this was a result of his father's support for the DMK party or of his being of the Brahmin caste. (2) As members of the Brahmin caste he and his family were resented for their prosperity, power and land ownership and as a consequence were treated rudely and experienced difficulty in hiring labour for the farm. He further claims that as a member of the Brahmin caste he has been persistently threatened and intimidated by members of a lower caste. (3) His mother is still living in the village of Kathri Madu and continues to run the farm, neither she nor the Applicant can re-locate to another area because they would get a very poor price for the farm due to the envy the family experiences as a result of their social position. Furthermore, the Applicant would not have access to fundamental rights of work and education should he be compelled to return to Kathri Madu." 7 The delegate considered and rejected each of these claims. He noted for example, in relation to the murder of the applicant's father, that it had occurred in "unknown circumstances". He concluded that it could not therefore give rise to a well‑founded fear of persecution. He considered that any discrimination that the applicant might face as a result of his being a member of the Brahmin caste would fall short of "persecution" as that term applied under the Refugees Convention. He also rejected the applicant's contention that he could not reasonably be expected to relocate to another part of India. 8 The Federal Magistrate noted that it was not open to the applicant to apply to the Refugee Review Tribunal for merits review of the delegate's decision because he was approximately thirteen years out of time. It was also not open to him to apply for another protection visa unless the minister gave consent under s 48A of the Act. His Honour observed that it was clear that much of the material relating to the delegate's decision had since been destroyed, and only an incomplete copy of the actual decision remained. Nonetheless, the substantive parts of the decision were still available. 9 The applicant claimed in his submissions below that he came to Australia because both he and his father had received threats. It appeared clear that some three years after his arrival in this country his father was killed in India. The unfortunate circumstances of his father's death were set out in newspaper articles annexed to Ms Davis's affidavit, together with some English translations of those articles. However, it was not clear that this material had been before the delegate at the time the relevant decision was taken. In fact, the Federal Magistrate found that the evidence suggested to the contrary. 10 His Honour noted that the applicant had sworn an affidavit to the effect that this material, together with certain submissions, had been sent to his solicitor or migration agent, to be forwarded to the Minister. As a result of the loss of the file, and lack of any other evidence, there was no proof that this material had reached the delegate. Indeed, his Honour did not know what was contained in the other material, save for the three articles that had been produced to and translated by the Minister. 11 The Federal Magistrate concluded that much of what the applicant had to say amounted to an invitation to the Court to engage in merits review. The only point that could be cast in terms of judicial review was a claim that the delegate had failed to have regard to relevant material, namely the newspaper articles and perhaps other material which had since been lost. There was no evidence that any of this material had been before the delegate. There was therefore no error on his part in not having regard to it. 12 The failure of the applicant's solicitor or migration agent to forward the material, if that is what had occurred, could not of itself give rise to a lack of procedural fairness. That was particularly so in circumstances where the applicant had available to him an opportunity for merits review, whereby the material could have been provided and considered by the review body. His Honour concluded that there was nothing to suggest that the delegate had failed to consider the applicant's claim in an appropriate manner. There was no want of logic in the reasons for decision. Accordingly, the applicant had failed to make out a valid ground of review. 13 His Honour went on to add that even if he were wrong in concluding that there was no denial of procedural fairness, the applicant would face further difficulties. The delay of thirteen years in seeking judicial review was extreme. There was prejudice to the Minister in that the relevant file and documents had gone missing. Moreover, there had been an alternative remedy available to the applicant at the time, namely merits review, which could have been invoked. The fact that merits review had not been sought was relevant to the exercise of any discretion to grant relief by way of judicial review. 14 Finally, there was the fact that the applicant had applied to the Minister under s 417 of the Act. That suggested that he had accepted the decision of the delegate, and the Court should not interfere with that decision. However, it is fair to say that his Honour essentially put to one side this last consideration because, as he noted, the application under s 417 could be seen as an act of desperation on the part of the applicant. 15 The applicant was not legally represented in the present application. However, arrangements were made to a family friend speak on his behalf. It must be said that the friend's contentions, though well meaning, amounted to little more than an attempt to evoke sympathy for the applicant's plight, and to invite merits review. I should say that the circumstances that he recounted, including matters personal to the applicant, do evoke sympathy. 16 Nonetheless, the Federal Magistrate's decision to refuse relief was unarguably correct. No appealable error has been demonstrated. On any view, it would require a remarkable case to justify an extension of thirteen years within which to seek judicial review of a decision, even assuming that some form of jurisdictional error can be demonstrated. 17 I note, for example, that the principles governing applications for the enlargement of time, under the High Court Rules, were explained by McHugh J in Re Commonwealth of Australia: Ex parte Marks (2000) 177 ALR 491. Relevantly, his Honour said that the grant of an enlargement of time is not automatic. The case would need to be "exceptional" before the time for commencing proceedings was enlarged by many months. In deciding whether to enlarge time, the Court would have regard to both the explanation for the delay, and the applicant's prospects of success. 18 It is clear that an important consideration in any application to enlarge time is the length of delay that has occurred. In Ex parte Marks there had been a delay of seventeen months between the making of the decision and the application for the constitutional writs. McHugh J doubted that an extension of time could ever be granted to quash a decision after such a lengthy delay, unless the delay was itself brought about by some conduct on the part of the respondent, the public body or the official responsible for making the decision. In the present case, the delay thirteen years is simply too long to countenance an extension of time. 19 Having read the delegate's reasons for decision, I cannot discern an error of any kind. There is nothing remotely approaching a jurisdictional error. It follows that no appealable error on the part of the Federal Magistrate has been demonstrated. For that reason, the application for an extension of time within which to file a notice of appeal will be refused. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 17 November 2004 The applicant was represented by Mr M Jools by leave of the Court Counsel for the Respondent: Mr W S Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 November 2004 Date of Judgment: 17 November 2004