Callover, Melbourne

[2005] HCATrans 204

[2005] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  

CALLOVER OF 21 IMMIGRATION

MATTERS

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 13 APRIL 2005, AT 9.30 AM

Copyright in the High Court of Australia

HIS HONOUR:   The course I propose to follow this morning is to deal first with any consent applications, then to go through the list in the order in which they are listed.  First, are there any consent applications?

At 9.30 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Mele (M149/2004)

MS J.K. MACDONNELL:   If it please the Court, I appear for the respondent.  (instructed by Clayton Utz). 

HIS HONOUR:   Yes, Ms Macdonnell. 

MS MACDONNELL:   Your Honour, I am instructed that minutes of proposed consent orders were filed with the Court on 12 April.

HIS HONOUR:   Yes.

MS MACDONNELL:   Your Honour, the Registrar is just handing a copy ‑ ‑ ‑

HIS HONOUR:   Yes.  Now, this has apparently been signed by the applicant in person, is that right?

MS MACDONNELL:   On my instructions, that is correct, your Honour.

HIS HONOUR:   Yes.  Does the applicant appear today, do you know?

MS MACDONNELL:   I do not know, your Honour.

HIS HONOUR:   Well, the signature which appears on the consent appears to be the same as the signature appearing on the initiating affidavit.  That being so, I will make consent orders in the form that you hand up to me, which I will initial and will remain on the file.

MS MACDONNELL:   Thank you, your Honour.

HIS HONOUR:   Yes, thank you.

AT 9.33 AM THE MATTER WAS CONCLUDED

At 9.33 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Jayah (M94/2004)

MR I. MUTHALIB:   May it please the Court, I appear for the respondent.  (instructed by Blake Dawson Waldron). 

HIS HONOUR:   Yes, Mr Muthalib. 

MR MUTHALIB:   Your Honour, consent orders were filed yesterday, 12 April.

HIS HONOUR:   Yes.  Indeed, I have directed the Registrar to draw up, sign and seal an order in accordance with the terms of that consent.  Thank you.

MR MUTHALIB:   Thank you, your Honour.

AT 9.34 AM THE MATTER WAS CONCLUDED

HIS HONOUR:   No other consent applications?  As I say, I will go through the matters in the order in which they appear in the list.  That may seem to be a lengthy way of doing it, but, in default of an alternative, it seems to be the only way to deal with it.

At 9.34 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant M69/2004

APPLICANT M69/2004 appeared in person.

MR C.J. HORAN:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   May I say to all of you present in Court, the Act forbids me from addressing you by your name, because we are taking a transcript of the proceedings, the transcript goes onto the Internet, and the transcript would, therefore, be recording your names.  Forgive me, therefore, what seems to be the great discourtesy of addressing you without using your name.  I intend no discourtesy – on the contrary – but it is the position that we are in as a result of the Act.  So that is the explanation.  It is the only one I can offer, but it is one I feel I owe to you, rather than treat you as I would ordinarily treat litigants in my Court, doing you the courtesy of calling you by your name.

I have in the papers an affidavit that was affirmed by you on 30 March, is that right, sir?  Mr Horan, have you seen the affidavit of the applicant affirmed 30 March?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   What do you say I should do with the matter?

MR HORAN:   It is my submission that the application should be dismissed this morning.  Firstly, the application was filed outside the time, insofar as the applicant seeks certiorari ‑ ‑ ‑

HIS HONOUR:   Well, just before we come to any development of the argument, the attitude of the Minister is that I should go on and determine the matter today?

MR HORAN:   Yes.

HIS HONOUR:   You say I should dismiss it.

MR HORAN:   Yes, your Honour, on determining the threshold issues as to whether or not the application should proceed or should be dismissed.

HIS HONOUR:   Yes.  Now, do you have anyone appearing for you today, sir?

APPLICANT 69/2004:   No.

HIS HONOUR:   I see that Mr Karapanagiotidis took the affirmation in your affidavit of 30 March 2005.  You had an opportunity, did you, to speak to the Asylum Resource Centre about your case?

APPLICANT 69/2004:   Yes.

HAYNE J:   Well, then, you ask in this affidavit that your case be sent to the Federal Court, that it not be dealt with by this Court and you refer to a number of matters that you put forward in support of that application, is that right?

APPLICANT 69/2004:   Yes.

HIS HONOUR:   Mr Horan, is there any objection to my receiving the affidavit to which I have referred?

MR HORAN:   No, your Honour.

HIS HONOUR:   Is there any other material that would be read on this application other than the affidavit affirmed 30 March 2005, the affidavit of Mr Brereton sworn 9 March 2005 and the initiating affidavit affirmed by the applicant on 6 April 2004?  Does that represent the whole of the material?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   Am I to take all of that as read?

MR HORAN:   Yes, if the Court pleases.

HIS HONOUR:   Now, sir, if you would be good enough to take a seat at the Bar table.  What I propose to do is to hear first Mr Horan, then give you a chance to say whatever you wish to say in answer.  So perhaps if you would be good enough to take a seat.  Now, Mr Horan, what do you wish to say?

MR HORAN:   The three issues which arise for determination this morning are, firstly, the question of extension of time, insofar as the applicant seeks certiorari.

HIS HONOUR:   Can you sketch for me, please, the principal dates that you say I should have regard to in this matter?

MR HORAN:   The principal dates in this case are – perhaps by way of background, the protection visa application was made on 28 November 1997.  The Refugee Review Tribunal decision, which is under challenge in these proceedings, was handed down on 9 February 2001.  The applicant was a member of the class action, the Muin and Lie class action, which resulted in an order nisi being filed in this Court on 18 May 2003, which was remitted to the Federal Court, and that proceeding was dismissed on 18 December 2003.

HIS HONOUR:   By?

MR HORAN:   By Justice Finkelstein, although I think the orders were not made until 3 February 2004.

HIS HONOUR:   Yes.

MR HORAN:   And then leave to appeal from those orders was refused by Justice Merkel on 18 March 2004.  I believe that ‑ ‑ ‑

HIS HONOUR:   How was it that a single judge was dealing with leave?  Was it an application for leave out of time?

MR HORAN:   I think it was, because the orders of Justice Finkelstein were regarded as interlocutory, having been a dismissal of the application for an order nisi.

HIS HONOUR:   Yes.

MR HORAN:   Now, I understand that the dismissal of the leave to appeal application was in default of an appearance by the applicant.

HIS HONOUR:   Yes.

MR HORAN:   The order nisi in these proceedings was filed in this Court on 6 April 2004.  Now, in relation to the certiorari extension of time, the relevant dates are the date of the Tribunal decision on 9 February 2001, and the filing of this order nisi on 6 April 2004, which is a period of just over three years.

HIS HONOUR:   And the time fixed by the Rules is six months?

MR HORAN:   Is six months.

HIS HONOUR:   From the decision – in this case – of the RRT of 9 February 2001, yes. 

MR HORAN:   Yes.  Now, it is my submission that it is for the applicant to persuade the Court that it is appropriate to grant an extension of time to issue certiorari.  Although the applicant seeks other relief, the Minister’s submission is that, unless certiorari can and is granted, the Tribunal’s decision will stand and there will be no basis for prohibition being issued against the Minister.

HIS HONOUR:   Yes.

MR HORAN:   In this case the draft order nisi seeks prohibition against the Minister in relation to the proceedings in the Tribunal.  So that is a further deficiency in the framing of the relief.  But, in any event, the consequence of not obtaining an extension of time would be not only that certiorari could not be issued, but that other relief would not be available to prohibit action by the Minister in giving effect to that decision.

HIS HONOUR:   Yes.

MR HORAN:   In assessing whether or not an extension of time should be granted, the applicant should firstly explain, give an explanation for the delay in commencing the proceedings, and the fact that the applicant has been engaged in pursuing other proceedings in relation to the same Tribunal decision does not generally serve as a sufficient justification for the delay in this case.  In fact, it may be taken as a factor against granting an extension.

The other principal factor on which I rely is the absence of prospects of success in this proceeding.  Without going into too much detail, your Honour, the grounds in this application are essentially procedural fairness grounds, which mirror the grounds that were considered by this Court in Muin and Lie, that is, a failure to refer to country information which was forwarded to the Tribunal, and a denial of an opportunity to respond to adverse country information.

The first point in relation to those grounds is that on the material before the Court at present there is insufficient evidentiary foundation to establish any of the necessary facts to give rise to the grounds which were considered in Muin and Lie.  In addition, the draft order nisi this time around specifies the country information in question which was said not to have been referred to by the Tribunal, although, when that information is looked at, it appears to have all been taken from the Tribunal’s reasons.  So, in fact, the country information specified is, in fact, country information which was specifically referred to in the Tribunal’s reasons, which is another obstacle in the way of making out that ground as it is currently framed. 

Beyond that, there are no particulars or detail given as to the alleged denial of an opportunity to respond to adverse information.  So, for those reasons, on the material at present, I would submit that there is no prospect of success in obtaining the relief that is sought in the draft order nisi.

Now, the other two issues that arise are in some senses connected to some of the issues that I have raised in dealing with the extension of time.  The first is issues of abuse of process or preclusion arising as a result of the earlier proceedings.  Now ‑ ‑ ‑

HIS HONOUR:   Questions of preclusion and the like seem to me, at least I am instructed, to present quite difficult issues.

MR HORAN:   Yes, your Honour.

HIS HONOUR:   Issues of a kind which would warrant consideration of what procedures should be adopted in this Court to see them finally resolved.  I do not say that that would necessarily lead one down the path of section 18 stated case.  It may, it may not.  It would be necessary to hear a full argument.  But preclusion, in connection with public law remedies, is a point which, I think, as far as I have been able to find, has not received close or detailed attention in decisions of the Court so far.

MR HORAN:   Yes.  It has certainly been recognised by your Honour and by other Judges that those are live issues awaiting determination by a Full Court in a proper case, but in this case, although I rely on those doctrines, it is perhaps unnecessary to dispose of this application on that basis, given the ‑ ‑ ‑

HIS HONOUR:   It would seem to me, at least at this point – without hearing further argument from you, whether in this case or in others – that if the case hinged upon the application of doctrines of preclusion, a course to be considered would be remitting it to the Federal Court for the full argument of those issues.

MR HORAN:   Yes, your Honour.

HIS HONOUR:   And then let the matter wend its way through the appellate process in the ordinary way.

MR HORAN:   Yes. 

HIS HONOUR:   Thus I think – as I say, I am instructed by you being given an opportunity to make further argument – either you stand or fall at this point on the arguments about timing that you have thus far made.

MR HORAN:   Yes.  Although, your Honour, perhaps the three bases, putting aside preclusion on which I would rely, is the extension of time, abuse of process, which is separate from preclusion and does not require determination of ‑ ‑ ‑

HIS HONOUR:   I understand that, but abuse also may carry with it some need to consider questions of doctrines of preclusions.

MR HORAN:   It may.  It is a related area, perhaps, to the area of res judicata and issue estoppel.  However, I note that in Applicant S434/2003, which was a decision by your Honour and Justice Kirby on 8 October, the questions of res judicata and issue estoppel were put to one side and reliance was placed on abuse ‑ ‑ ‑

HIS HONOUR:   That was a disposition on leave, was it?

MR HORAN:   It was a leave to appeal from his Honour Justice Heydon.

HIS HONOUR:   Yes, and I think there is a view reflected in – I think it is North Ganalanja that a disposition on leave creates no precedent.

MR HORAN:   Well, I do not attempt to rely on it as binding on your Honour, but perhaps ‑ ‑ ‑

HIS HONOUR:   But consistency is a valuable judicial precept.

MR HORAN:   I would simply adopt, with respect, the correct expression of the principles which apply to some of these proceedings today – perhaps not all of them – that the application to this Court, for the same remedy sought in but refused by the Federal Court, is an abuse of process where the central complaint of the applicant in this Court and in the Federal Court was identical.  This case falls into that category.

The third aspect I would rely on is simply the “no arguable case” threshold, which needs to be established before an order nisi is granted.  Although in many cases it would be convenient for this Court to remit that question to be determined by the Federal Court, in clear cases such as this one I would submit that the proper course is for this Court to dismiss the application as raising no arguable case for the grant of an order nisi, rather than remitting that question to the Federal Court.

HIS HONOUR:   Yes.

MR HORAN:   But I think I have sufficiently identified the subject ‑ ‑ ‑

HIS HONOUR:   Thank you, Mr Horan.  Well, now, sir, perhaps if you come to the centre, if you would, and stand at the lectern, if you would not mind.  Can I try to summarise where we have got to.  The Minister says I should stop the action today.  The Minister says I should do that for a number of reasons.  For the moment, the reason that I want to focus on is this.  He says – she says, these days – her counsel says that applications like yours have to be started within a limited time – six months.  The Rules of Court say that that is so.  The Minister’s counsel says, in effect, “You did not start within time.  The application is about a decision that is now very old.  You have had one set of proceedings go through the court system challenging the decision.  Why should you have a second chance?”  That is the argument.

Now is your chance for you to say anything you want to say in answer to those arguments, do you understand?  Is there anything further that you want to tell me in answer to those arguments?

APPLICANT M69/2004:   Please do not dismiss my case, the six months.  This is the last chance. 

HIS HONOUR:   Yes, I know.  It is.  Is there anything else that you would want to say?  I know it is the last chance, I have read what you have said, I understand the position in Sri Lanka, I understand your position with your family following what happened in Sri Lanka recently.  I understand that.  Is there anything more you would wish to say?  Thank you.

APPLICANT M69/2004:   Thank you very much.

HIS HONOUR:   Perhaps if you would sit down. 

The applicant arrived in Australia in November 1997 and applied for a protection visa on 28 November of that year.  A delegate of the Minister refused the application on 28 January 1997.  The applicant applied to the Refugee Review Tribunal for review of that decision, but the Tribunal affirmed the refusal of the application on 9 February 2001.

The applicant joined the representative proceedings in this Court, known as the Muin and Lie class action.  As a result of the course taken in those proceedings, on 18 May 2003 the applicant filed an affidavit and draft order nisi seeking relief in this Court, in effect, quashing the decision of the Refugee Review Tribunal.  That application was remitted to the Federal Court of Australia and on 18 December 2003 his application came before Justice Finkelstein of that court.  On 18 December 2003 Justice Finkelstein indicated that he proposed to dismiss the application unless by 2 February 2004 the applicant submitted a legally arguable case.  In fact, the applicant did not provide further material, and on 3 February 2004 the order foreshadowed on 18 December 2003 was entered.

On 9 February 2004 the applicant sought leave to appeal to the Full Court of the Federal Court of Australia.  On 18 March 2004 Justice Merkel dismissed that application, the applicant not appearing at the hearing of the application for leave.  On 6 April 2004 the applicant filed an affidavit, to which was exhibited a draft order nisi, seeking, again, relief in this Court.  The principal relief which was sought was prohibition directed to the Minister and the Tribunal, and certiorari to quash the decision made by the Tribunal in February 2001.

The difficulty which the applicant confronts is that his application, commenced in this Court in April 2004, is, so far as it seeks relief in the nature of certiorari, commenced well after the time fixed by the Rules of Court for commencement of such proceedings.  The Rules of Court provide no time limit for the institution of proceedings seeking prohibition, but the prohibition which the application would seek, directed to the Tribunal, is relief of a kind which, in any event, would not be granted, there being no further step to be taken by the Tribunal which could be prohibited. 

Insofar as prohibition is sought to be directed not to the Tribunal but to the Minister, again, so long as the decision of the Tribunal stands, as Justice McHugh pointed out in Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 at 488, paragraph [23], prohibition would not issue to the Minister to prohibit her from removing the applicant, because, so long as the Tribunal’s decision remains intact, it is the Act which prescribes the consequences that follow in respect of an unlawful non‑citizen.

It follows that prohibition would be inapposite relief for so long as the Tribunal’s decision affirming refusal of a protection visa were to stand unaffected.  Thus, the applicant must confront directly the difficulty presented by his application for certiorari being commenced out of time.

The applicant, in an affidavit affirmed on 30 March 2005, said that he wished to provide further information in support of his request that the Court not strike out these proceedings.  In that affidavit, he said that he believed that it would be unfair and unreasonable for the Court to take that course because he believed, first, that his case has legal merit, because the Tribunal did not sufficiently consider his personal circumstances when making its decision, and, second, because although this is the second time he seeks to have his case heard, he considers that he did not get an opportunity to present arguments to the Federal Court in connection with the proceedings first before that court, because his case was dismissed before hearing.

Finally, he refers to the fact that if these proceedings are terminated summarily he could then be required to return to Sri Lanka, where he fears for his safety and his livelihood.  The home which he had in Sri Lanka was lost in the Boxing Day tsunami.  Those of his family who remain in that country are living in a camp with others who have lost their homes as a result of that disaster.

The course of events which I have described provides no basis upon which it would be proper for me to conclude that the time for commencing these proceedings should now be extended.  The course of events which I have described, involving, as it does, resort to the courts of this country in connection with his contention that the Refugee Review Tribunal did not accord him procedural fairness, provides powerful reason why the time limit otherwise imposed by the Rules of Court should not be extended.  As has now been pointed out on a number of occasions in this Court, the time limit is fixed as it is because decisions of the kind which the applicant seeks to review must either stand or be set aside within limited times in the interests of proper administration of law.

For these reasons, it follows that the application which the applicant makes must be dismissed. 

Yes, Mr Horan?

MR HORAN:   I apply for costs, your Honour.

HIS HONOUR:   Yes.  Is there anything you can say in answer to that application?

APPLICANT M69/2004:   No, sir.

HIS HONOUR:   The application must be dismissed with costs.

AT 10.06 AM THE MATTER WAS CONCLUDED

At 10.06 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicants M70/2004.

MR C.J. HORAN:   If it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, there was a notice of discontinuance filed, was there not?

MR HORAN:   Yes.  I have not ‑ ‑ ‑

HIS HONOUR:   Now, Mr Fernandez, you have an interest in this matter, I believe, is that right?

THE INTERPRETER:   I am the interpreter, your Honour.

HIS HONOUR:   Indeed, thank you.  Forgive me.  Mr Fernandez, you have an interest in this matter, I believe?

MR T.A. FERNANDEZ:   No, I do not have today, your Honour.

HIS HONOUR:   No, but a notice of discontinuance was filed, I understand.

MR FERNANDEZ:   That is what I was informed, that the notice of discontinuance has been filed.

HIS HONOUR:   Yes.  Mr Horan, is there any reason why the notice should not take effect according to its terms?

MR HORAN:   No, your Honour.

HIS HONOUR:   Lest there be any doubt about it, if I simply record that the proceeding has been discontinued with the consequences that follow according to the Rules?

MR HORAN:   Yes, if the Court pleases.

HIS HONOUR:   Yes, thank you.

AT 10.07 AM THE MATTER WAS CONCLUDED

At 10.07 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M73/2004

MS J.K. MACDONNELL:   If it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Are you aware of there being any appearance on behalf of the applicant?

MS MACDONNELL:   I am not, your Honour.

HIS HONOUR:   And this is a matter, I understand, where correspondence to the applicant at the address given by the applicant has been returned to sender, is that right?

MS MACDONNELL:   That is correct, your Honour.

HIS HONOUR:   Nonetheless, we should perhaps call outside the Court matter M73/2004.  While that is being done, I should say to you, Ms Macdonnell, that on the correspondence filed at the Court is the letter sent by the Registrar dated 3 March 2005 to the applicant recording that the matter was to be called over on Wednesday, 16 March.  That was returned to sender marked “Left address, unknown”. 

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you.  What course do you say I should take, Ms Macdonnell?

MS MACDONNELL:   Your Honour, the respondent submits that the matter should be dismissed.  It is a matter in which it would have been necessary for the applicant to obtain an extension of time in which to seek the relief that he does.

HIS HONOUR:   If I order that the matter be dismissed for want of prosecution, the applicant to pay the Minister’s costs, does that sufficiently meet the case?

MS MACDONNELL:   It does, indeed, your Honour.

HIS HONOUR:   Yes.  Those orders will be made.

AT 10.09 AM THE MATTER WAS CONCLUDED

At 10.09 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant M91/2004

APPLICANT M91/2004 appeared in person.

MS J.K. MACDONNELL:   If it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Now, the applicant appears, I believe, and there is an interpreter who is good enough to come and assist us.  Mr Interpreter, would you wish to take an affirmation?

THE INTERPRETER:   Yes, please.

HIS HONOUR:   Perhaps if you would be good enough to take the affirmation.

HOSHIAR SINGH RAI, affirmed as interpreter:

HIS HONOUR:   Thank you, Mr Interpreter.  Would you be good enough then to interpret what I am saying.  Ms Macdonnell, the applicant has filed an affidavit sworn 23 March 2005, an affidavit of four paragraphs.  Is there any reason why I should not receive that affidavit and read it?

MS MACDONNELL:   No, your Honour.

HIS HONOUR:   Yes.  Apart from that affidavit, just to be sure what other material is before me, there is an affidavit of Mr Mosby sworn ‑ ‑ ‑

MS MACDONNELL:   Sworn on ‑ ‑ ‑

HIS HONOUR:    ‑ ‑ ‑ 15 March 2005, which sets out a history of matters, I think.  Is that right?

MS MACDONNELL:   There is an affidavit of Mr Mosby sworn on 21 May 2003 and there is the affidavit of the applicant, the affidavit in support of the commencement of the proceedings, which is sworn on 3 May 2004.  I am sorry, your Honour.  There is an affidavit of Mr Mosby on 15 March 2005.

HIS HONOUR:   Now, let me just be sure.  I have the applicant of 3 May 2004.  Mr Mosby, the one to which I was looking was 15 March 2005, is that right?

MS MACDONNELL:   That is correct, your Honour.  I am sorry, the other date appears in an exhibit to the affidavit.

HIS HONOUR:   Yes.  And there is the applicant of 23 March?

MS MACDONNELL:   That is correct, your Honour.

HIS HONOUR:   Are those affidavits the ones to which I should refer?

MS MACDONNELL:   Yes, your Honour.

HIS HONOUR:   Now, what do you say I should do, Ms Macdonnell?

MS MACDONNELL:   In this matter the respondent is seeking to have it dismissed, because the respondent submits it is a matter in which an extension of time is required.  The applicant has not put forward reasons that should attract the exercise of that discretion in his favour.  There is a history in which the applicant would also submit that, in fact, the proceedings are an abuse of process.  The respondent is, however ‑ ‑ ‑

HIS HONOUR:   Can I just make sure that I understand that history properly.

MS MACDONNELL:   Yes, your Honour.

HIS HONOUR:   Do I understand it as being this?  Perhaps I need to go back behind that.  When did the applicant arrived in Australia?

MS MACDONNELL:   The decision of the Tribunal is in October 2000.  I will have to check when the applicant actually arrived in Australia.

HIS HONOUR:   Well, in any event, he applied for a visa, it seems, on 27 April 1999.  Delegate refused that ‑ ‑ ‑

MS MACDONNELL:   May 19 ‑ ‑ ‑

HIS HONOUR:   12 May 1999.

MS MACDONNELL:   Yes.

HIS HONOUR:   12 October 2000 the Tribunal affirmed the refusal.

MS MACDONNELL:   Yes, your Honour.

HIS HONOUR:   He joined the Muin and Lie proceedings.  He filed in May 2003 ‑ ‑ ‑

MS MACDONNELL:   Yes, your Honour.

HIS HONOUR:   In fact on 22 May 2003 ‑ ‑ ‑

MS MACDONNELL:   22 May.

HIS HONOUR:    ‑ ‑ ‑proceedings in this Court, remitted to the Federal Court.

MS MACDONNELL:   19 September 2003, your Honour.

HIS HONOUR:   Those proceedings were further remitted in January 2004 to the Federal Magistrates Court and on 18 March 2004 the Federal Magistrates Court ‑ ‑ ‑

MS MACDONNELL:   Federal ‑ ‑ ‑

HIS HONOUR:    ‑ ‑ ‑ dismissed the proceeding.

MS MACDONNELL:   Refused the application for an order nisi, your Honour.

HIS HONOUR:   Yes.

MS MACDONNELL:   And then the applicant lodged a notice of appeal and an application for leave to appeal in the Federal Court on 18 April 2004.  His Honour Justice Ryan refused ‑ ‑ ‑

HIS HONOUR:   18 April or 14 April?

MS MACDONNELL:   Sorry, he lodged it before – his Honour Justice Ryan refused the leave on 18 April 2004.

HIS HONOUR:   Well, you say 18.  The affidavit says 14.  Which is it?

MS MACDONNELL:   Your Honour, I will just check the date of his Honour’s – 14, sorry, your Honour.

HIS HONOUR:   Yes.  And then the new proceeding is commenced here in May 2004.

MS MACDONNELL:   That is correct, your Honour.  The new proceeding seeks a writ of prohibition and of certiorari.

HIS HONOUR:   Yes.  Now, do you seek to add to the arguments advanced in the first of these matters by Mr Horan?

MS MACDONNELL:   No.  The respondent relies on those arguments.

HIS HONOUR:   Yes.  Thank you.  Now, sir, again, the position we have got to is this.  The Minister says I should dismiss your case.  The Minister says I should dismiss your case because it is started after the time fixed by the Rules of Court.  You were, I think, present in Court when the first of these applications was heard, but forgive me if I repeat some things that were said then.

The Minister says I should dismiss the case because you have started the proceeding too late and because you have already had one proceeding go through the court system of Australia.  Now is your chance to answer those arguments.  Is there anything you want to tell me in answer?

APPLICANT M91/2004 (through interpreter):   I want to say that my case may be reconsidered and all the proofs, whichever I had, I have attached to my file.

HIS HONOUR:   Yes.  Is there anything else you would wish to say?

APPLICANT M91/2004 (through interpreter):   No, nothing.

HIS HONOUR:   Yes.  Thank you very much.  Perhaps if you would be good enough to sit down.

Although this application has a number of similarities with the application in matter M69/2004, which I heard and determined earlier today, it is appropriate that I give separate reasons in this matter and deal with the case separately.  It is appropriate to take this course because the applicant’s case is not to be treated simply as falling into a particular form or category and then to be disposed of according to that classification.  The applicant is entitled to separate consideration of his separate application.

The applicant applied for a protection visa on 27 April 1999.  A delegate of the Minister refused to grant him such a visa on 12 May 1999.  On 1 June of that year the applicant applied to the Refugee Review Tribunal for review of the decision refusing his application for a protection visa.  On 12 October 2000 the Tribunal determined to affirm the decision of the delegate, refusing his application for a protection visa.

The applicant joined the representative proceedings in this Court, which came to be known as the Muin and Lie litigation.  Following directions that were given in that proceeding, the applicant made application to this Court for constitutional writs and associated relief by application made on 22 May 2003.  On 19 September 2003 that application to this Court was remitted to the Federal Court of Australia.  Various interlocutory steps were taken in that court during that year, but on 19 January 2004 Justice Kenny of the Federal Court of Australia remitted the matter to the Federal Magistrates Court of Australia.  On 18 March 2004 Federal Magistrate McInnis refused the application for constitutional writs and associated relief and awarded costs to the Minister.

On about 22 March 2004 the applicant sought to appeal from the decision of the Federal Magistrates Court to the Federal Court of Australia.  Because the application that had been dealt with by the Federal Magistrates Court was an application for orders nisi for the grant of constitutional writs and like relief, the notice of appeal which the applicant had filed on the Federal Court was treated as an application for leave to appeal.  On 14 April 2004 Justice Ryan of the Federal Court refused the application for leave to appeal.

On 3 May 2004 the applicant filed an affidavit in this Court commencing a fresh application for constitutional writs and associated relief directed to quashing the decision of the Refugee Review Tribunal made in October 2000.  The Minister now contends that that application should be dismissed because, insofar as it seeks certiorari to quash the decision of the Tribunal, it is commenced outside the time fixed by the Rules of Court and, insofar as it seeks the grant of other relief, the relief which is sought is inapposite in all the circumstances.

As I have explained in a number of other decisions, insofar as the applicant seeks certiorari to quash the decision of the Tribunal, the course of events which I have described provides no reason for extending the time fixed by the Rules of Court for commencing such an application.  On the contrary, the course of events which I have described, including, as it does, recourse to the judicial power of the Commonwealth on an earlier occasion, provides powerful reason why no extension of time should now be granted to permit a second application seeking certiorari to quash the decision of the Tribunal.

Again, as I have indicated in a number of other decisions I have given, insofar as the applicant seeks prohibition directed to the Tribunal or to the Minister, that relief is inapposite for the reasons explained by Justice McHugh in Re Ruddock; Ex parte Reyes.  Prohibition will not go to the Tribunal because, so long as its earlier decision stands, there is no further proceeding of that Tribunal to prohibit.  Prohibition will not go to the Minister to prohibit her from removing the applicant because, so long as the Tribunal’s decision stands, it is the Act which prescribes the consequences that follow, not any decision of the Minister.

It follows that the application, insofar as prohibition is sought, is an application which would fail because there is no arguable case for its grant.  Insofar as the application seeks certiorari, that is an application which is made out of time and no extension of that time should be granted.  For these reasons, it follows that the application must be dismissed.

MS MACDONNELL:   Your Honour, the respondent seeks costs in the matter.

HIS HONOUR:   Yes.  Is there anything you would wish to say in answer to the application for costs?

APPLICANT M91/2004:   No, sir.

HIS HONOUR:   The application must be dismissed with costs.

AT 10.27 AM THE MATTER WAS CONCLUDED

At 10.27 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M123/2004

MS J.K. MACDONNELL:   If it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Matter M123/2004 is one in which there appears to be no appearance for the applicant.  Again, if we call the matter outside the Court.  While that is occurring, Ms Macdonnell, have those instructing you had any recent communication with the applicant to which my attention should be drawn?

MS MACDONNELL:   Your Honour, there is a supplementary affidavit by my instructing solicitor dated 24 March in which he deposes to having served ‑ ‑ ‑

HIS HONOUR:   Just one moment.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Yes, thank you.  Yes, he deposes to service of the order?

MS MACDONNELL:   Yes, on the applicant.  Your Honour, I do have an affidavit of service.

HIS HONOUR:   Good.  That may be filed in Court.  So far as one is able to glean from the course of events, the communication with the applicant appears to have been successful.  At least the letter was collected from Australia Post.

MS MACDONNELL:   To the best of the respondent’s ‑ ‑ ‑

HIS HONOUR:   Yes, one can only infer.  Well, what do you say I should do?

MS MACDONNELL:   Your Honour, the other matter that just might be drawn to your attention is that on the prior occasion, on 16 March, this was a matter in which the applicant did appear.

HIS HONOUR:   Yes.

MS MACDONNELL:   So he would also have been ‑ ‑ ‑

HIS HONOUR:   And was present in Court, and I think I am right in recalling, am I not, that I indicated to those present that this was an important occasion which may represent their last chance?

MS MACDONNELL:   Your Honour did stress that.

HIS HONOUR:   Yes.

MS MACDONNELL:   If your Honour would make the same order, to dismiss the matter for want of prosecution ‑ ‑ ‑

HIS HONOUR:   And the applicant to pay the Minister’s costs?

MS MACDONNELL:   Costs, yes.

HIS HONOUR:   There will be orders that the application is dismissed for want of prosecution.  The applicant must pay the Minister’s costs.

MS MACDONNELL:   Thank you, your Honour.

AT 10.30 AM THE MATTER WAS CONCLUDED

At 10.30 am Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M124/2004

MR T.A. FERNANDEZ:   If your Honour pleases, I appear for the applicant.  (instructed by the applicant)

MR C.J. HORAN:   If the Court pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, in this matter there is the affidavit of the applicant affirmed on 11 April 2005.

MR FERNANDEZ:   That is right, your Honour.

HIS HONOUR:   Is there other material to which I should have regard, Mr Fernandez?

MR FERNANDEZ:   The applicant was able to obtain a copy of the transcript of the RRT, your Honour.  I must say that that has not been handed to the Court, but I do have a copy with me, in relation to those RRT proceedings.

HIS HONOUR:   Yes.  Perhaps I should first hear from Mr Horan what he says I should do and then hear you in answer, Mr Fernandez.  Mr Horan, what do you say I should do?

MR FERNANDEZ:   Thank you, your Honour.

MR HORAN:   The matter should be dismissed on the basis that it is out of time under the Rules.

HIS HONOUR:   What are the critical dates in this matter and where do I most conveniently find them, Mr Horan?

MR HORAN:   I will outline them but, perhaps before doing so, the points of significance in this proceeding are that the order nisi application is filed approximately seven years and four months after the relevant Tribunal decision.  There has been no previous application for a judicial review of that decision, but there was in the intervening period a lengthy process of applying for a special need relative visa and then seeking merits and judicial review of the refusal of that application.

HIS HONOUR:   You will need to go back several stages.  I am labouring, then, three furlongs behind the field.  Start me again.  There is an application for a special needs relative visa?

MR HORAN:   I will go right back to the start.  The applicant arrived in Australia on 10 December 1995 and applied for a protection visa on 11 January 1996.  That was refused by a delegate of the Minister on 3 July 1996 and an application to the RRT was made on 5 August 1996 and the Tribunal affirmed the delegate’s decision on 13 February 1997.  That is the first stage in the chronology which deals with the protection visa application.

HIS HONOUR:   No application for judicial review of that refusal was made at that time?

MR HORAN:   Was made at that time.

HIS HONOUR:   Right.

MR HORAN:   The applicant then applied for a special need relative visa on 30 July 1998.  It is perhaps a slightly lengthy history, but I will recount the dates, in any event.  The delegate refused that on 2 August 2001.  The Tribunal affirmed that decision on 7 March 2002.  If I could just interpose there that the affidavit in this matter filed on behalf of the respondent, which is an affidavit of Lysbeth Mary Haigh, sworn 10 March 2005.  I think there is a typographical error and it gives the date of that Tribunal decision as being 2003, but it should be 7 March 2002.

An application was made to the Federal Court on 5 April 2002 to review that decision of the Migration Review Tribunal.  It was at some stage transferred to the Federal Court Magistrates Court and dismissed by her Honour Federal Magistrate Barnes on 27 September 2002.  There was then an order nisi application made to this Court in proceedings M11 of 2003 and that was filed on 15 January 2003.

That was remitted to the Federal Court on 26 February 2004 and was dismissed by Justice Heerey on 18 May 2004, I think, for non‑appearance.  It was dismissed under Order 10, rule 3.2.  I am just unable to inform your Honour whether that is a consent matter or a non‑appearance.  I think it might be a consent.  In any event, that was the end of the process relating to the special need relative application.  Then, almost a month after that, the order nisi was filed in this Court on 15 June 2004.  There has been an extraordinarily significant delay in commencing the proceedings to challenge the RRT decision which, as I mentioned earlier, is some seven years and four months between the date of that decision being handed down and the date of the order nisi being filed in this Court.

The application contains a list of administrative law grounds, none of which are given any particulars indicating what challenge is made by the applicant to that decision.  So, in those circumstances, the application is out of time.  The applicant has not demonstrated any special – any reasons justifying the grant of an extension of time and, further, there is no arguable case raised on the face of the material and, in particular, the draft order nisi.  For those reasons, an extension of time should be refused.  If your Honour pleases.

HIS HONOUR:   Yes.  Yes, Mr Fernandez.

MR FERNANDEZ:   I will deal with the second issue first, your Honour, that is, in relation to there being no arguable case.

HIS HONOUR:   I think I would prefer it if you would deal first with this question of time.  Questions of arguable case may be something that attract other considerations, such, for example as whether I should, in any event, simply remit those questions to be dealt with in another court.  So if you would turn, first, if you would not mind, please, to the question of time.  What are we to do about – what was it, seven years, four months?  In any event, a period of some years between RRT decision and application now to review it?

MR FERNANDEZ:   Yes.  The only explanation that I can offer, your Honour, is this, and that is the applicant, as my learned friend has correctly pointed out, did file an application for a special need relative class visa and went through the processes in relation to that application, seeking merit review and also judicial review.  Those processes took a couple of years to complete.  When those proceedings finally came to an end, terminated by the Federal Court pursuant to Order 10, it is only then that the applicant commenced these proceedings in this Court.

I really do not think I can take the matter much further than that, your Honour, because there is that chronology of events and that is borne out by the fact of the previous proceedings.  I would ask your Honour to look at the merits for a moment, if I may and I will turn my attention to that, subject to your Honour’s permission?

HIS HONOUR:   Yes.

MR FERNANDEZ:   All that I am saying at this stage is – the decision of the RRT was in 1997.  That is a matter of fact.  But at that stage, your Honour, the Tribunal attacked the applicant’s credibility on country information.  That was really not put to the applicant at the hearing.  A perusal of the transcript perhaps will substantiate that part of my submission.  The reason why perhaps that has occurred was because there was a denial of natural justice, because we are looking back at some time in 1997 and that is prior to all the amendments to the Migration Act that occurred in 2001 and 2002.

So looking at it from that point of view and at that time and at that angle, your Honour, substantially, the applicant has been denied natural justice by that country information not being put to the applicant.

HIS HONOUR:   I am just looking at the RRT decision.

MR FERNANDEZ:   Yes.

HIS HONOUR:   There is reference to a DFAT publication about passport issue and exit procedures.  There is then reference to a number of sources.

MR FERNANDEZ:   Yes.  If your Honour takes exhibit LMH1 and refers to the affidavit of Ms Haigh sworn on 10 March ‑ ‑ ‑

HIS HONOUR:   Yes, I have that.

MR FERNANDEZ:   If your Honour takes page 5 of the RRT decision, apart from setting out the legislative framework under which the Tribunal operates, your Honour will find that there is a lot of information, particularly on page 7 of the decision and that follows through to page 8 and 9 as well, in relation to the position in Sri Lanka, particularly in relation to the Sri Lankan Tamil Muslims.

My respectful submission to your Honour is simply this.  A perusal of the transcript does not disclose that this information on which the Tribunal was relying on was put to the applicant and this has become crucial as far as the Tribunal deciding the question of credibility.  My respectful submission to your Honour would simply be that there is an arguable case.

HIS HONOUR:   Where do I find in the Tribunal decision an adverse finding about credibility?

MR FERNANDEZ:   Yes, if your Honour may just give me a second?

HIS HONOUR:   Yes.  I find some at the foot of page 11.

MR FERNANDEZ:   Yes, page 11, page 9, also, in the middle of the page.  I am sorry, your Honour, I just cannot put my finger on that relevant portion.  Page 11 is there and page 9 is also there.

HIS HONOUR:   Yes.  I had read page 13 in the paragraph commencing at about line 15, or thereabouts, as being the core of the reasoning:  long history of education and business, no evidence harassed by any of the security forces nor plausible evidence being sought by SLMC, LTTE or security forces, not experienced Convention‑related harm, his encounters with harm during election campaigns and arrest, neither of those circumstances leads to “a conclusion of real chance”.  That seemed to me to be the essence of the reasoning, but do I read it wrongly?

MR FERNANDEZ:   I cannot say your Honour reads it wrongly, but ‑ ‑ ‑

HIS HONOUR:   I do not know.  Counsel often enough tell me that.

MR FERNANDEZ:   The point that I am making is simply this, your Honour, that the Tribunal has not come to really grips with the applicant’s claims as he has set forth in his affidavit that was sworn and presented at the hearing.  If your Honour so requires, I will give your Honour the date of that.  It is not an affidavit, it is a statutory declaration, that sets forth his claims and basically what the applicant was simply saying was this, “I have become the enemy within the Muslin Tamil community”, and that aspect has not been discussed by the Tribunal.  The Tribunal goes off on a tangent and says, “Well, you have been issued with a passport, you have left Sri Lanka and therefore I conclude” – but the crux of the matter has actually not been considered by the Tribunal.

HIS HONOUR:   Yes.

MR FERNANDEZ:   So that would be my submission to your Honour, that in the sense that there is an arguable case and in the light of that, if your Honour agrees with me in relation to that aspect, your Honour may give me some time to – the applicant has not conducted these proceedings through a solicitor right through.  He has just filed in the necessary papers and only at the eleventh hour he sought my assistance and I came on the scene only at the last hearing.  I do not act for him, your Honour, I just appear for him today on a pro bono basis, but I think, in my respectful submission to your Honour, there is the material there to show that he has an arguable case.

I do concede that the decision of the RRT is in 1997.  I cannot escape from that, but I think it has been explained away by him taking other proceedings.  If he was successful in those proceedings perhaps he would not have sought judicial review of these proceedings.  In all of the circumstances, your Honour, my respectful submission is that the applicant should be given an opportunity to prosecute these proceedings.  Thank you, your Honour.

HIS HONOUR:   Yes, thank you, Mr Fernandez.  Mr Horan, is there anything you wish to add?

MR HORAN:   Your Honour, the fact that the applicant was pursuing a special need relative visa has not sufficiently explained such a lengthy delay.  If there were issues to be raised in relation to the Refugee Review Tribunal decision, they should have been raised more promptly.  In fact, rather than seeking to raise any challenge to the Refugee Review Tribunal decision the applicant elected to pursue other avenues to remain in Australia and those avenues took a substantial period of time, during which the applicant was content not to bring forward any challenge to the Refugee Review Tribunal decision.  So, in my submission, the conduct of those proceedings does not justify the delay for the purposes of an extension of time.

I am not perhaps in the best position to comment on the merits of the arguments which have been put forward this morning, particularly because I have not myself read the transcript and nor has the transcript in fact been provided even to the Court in order to test the assertion which is made from the Bar table that in fact ‑ ‑ ‑

HIS HONOUR:   But your argument must stand or fall, must it not, on the assumption that an arguable case is propounded?  If no arguable case is propounded, we never get to time limits.  If an arguable case is propounded then it seems to me that you stand or fall according to the proposition that at least when you have hit as long as seven years there must come an end of litigation.

MR HORAN:   Yes, and it is simply too late to be seeking to raise these matters now which have not in fact been formally raised by way of particularising the draft order nisi or providing evidence to support.  But assuming that there may potentially be some arguable point raised, the length of the delay precludes the applicant from seeking now to raise that before this Court.

HIS HONOUR:   There is, I think, a passage of Lord Wilberforce in a case called The Ampthill Peerage, which concerned a dispute about legitimacy and succession to some title of honour in England.  Lord Wilberforce refers there to the value which the law must put on certainty and the competition that apparently exists with the needs of justice.  As I recall it, his Lordship says there simply comes a time when certainty trumps what apparently seems to be the requirements of justice.  That is what underpins the argument about time.

MR HORAN:   Yes, your Honour.  I would respectfully adopt those comments in relation to this case.

HIS HONOUR:   The applicant, a citizen of Sri Lanka, made application for a protection visa as long ago as 11 January 1996.  On 3 July 1996 a delegate of the Minister refused that application and on 5 August 1996 the applicant applied to the Refugee Review Tribunal to review the decision refusing his application.  On 13 February 1996 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

The decision of the Tribunal records that the applicant was advised by a solicitor of the Refugee Advice and Casework Service in connection with that application.  The applicant did not seek judicial review of that decision of the Refugee Review Tribunal.  Rather, on 30 July 1998 the applicant made application for permanent residence in Australia on the basis of a claim to be a special needs relative for his sister.

That application was refused by a delegate of the Minister on 2 August 2001 and the applicant sought review of that decision by the Migration Review Tribunal which on 7 March 2002 affirmed the delegate’s decision.  The applicant sought review of the decision of the Migration Review Tribunal by the Federal Court of Australia.  In April 2002 that court ordered that the matter be transferred to the Federal Court Magistrates Court.  That court dismissed the application for review on 27 September 2002.

For the purposes of that application, the applicant was represented by counsel.  In January 2003 the applicant sought in this Court the grant of an order nisi for the grant of constitutional relief and associated orders in connection with the decision of the Migration Review Tribunal that had been given in March 2002.  The proceedings in this Court were remitted to the Federal Court and on 18 May 2004 Justice Heerey of the Federal Court dismissed the application.

On 15 June 2004 the applicant filed an affidavit in support of an application to this Court for grant of orders nisi for prohibition, injunction or orders in the nature of certiorari or mandamus directed to the Minister and to the Refugee Review Tribunal in respect of the decision of that Tribunal that had been given in February 1997.

Insofar as the application seeks the grant of mandamus or the grant of certiorari, it is made well outside the times fixed by the Rules of Court for the making of those applications.  Indeed, it was instituted more than seven years after the Tribunal made the decision which it is now sought to impugn.

The applicant contends that he has an arguable case for a grant of the relief of the kind he seeks.  He contends, in effect, that he was denied procedural fairness in the proceedings in the Refugee Review Tribunal.  On the material presently filed in the Court it is not possible to make any detailed examination of that claim that he propounds an arguable case for relief of the kind he seeks.  Rather, it is convenient to treat the application on the premise that the case which he propounds is not unarguable.

Nonetheless, it is important to recall that the times fixed by the Rules of Court have long since expired.  A grant of extension of those times is not automatic:  see, for example, Gallo v Dawson (1990) 64 ALJR 458. An extension of time for seeking relief against a decision could be granted only if it were necessary to do justice between the parties. That means, as Justice McHugh pointed out in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 495, paragraph [15]:

that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension.

But as Justice McHugh also pointed out in Re Commonwealth; Ex parte Marks:

Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered.  Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

It is that public interest in the end to litigation about public decisions which underpins the fixing of the very short time limits that are fixed by the Rules of Court in relation to relief by way of mandamus, a period of two months, and relief by way of certiorari, a period of six months.  The very brevity of the times fixed indicates the importance that is attached to not disturbing the certainty of public decision‑making made, in this case, pursuant to statute.

In the present case, more than seven years has elapsed between the time of the making of the decision which it is sought to impugn and the application for that relief.  The lapse of time is so long that of itself that is reason to refuse the extension.  Nothing in the course of events which I have described as intervening between the time of the decision and the application for the relief now under consideration would point in the opposite direction and favour a grant of extension.  Rather, the course of events which I have described points to the applicant abandoning the claim to protection and pursuing instead the claim to permanent residence as a special needs relative of his sister.

Even assuming that the case which the applicant would seek to propound in this Court is a case which cannot at this stage be described as unarguable, I am of the opinion that no case is made out for extending the periods within which application might be made for certiorari or mandamus.  No time limit is fixed as the period within which application must be made for prohibition but, as pointed out in a number of earlier decisions, the grant of prohibition will not avail the applicant in this matter.

The Tribunal has completed its function.  There is nothing left which it is to do that can be prohibited.  The Minister now is bound to act in accordance with the statute.  It would be wrong to grant relief that would prohibit her from doing so if, as is the case here, the decision which underpins her conduct, namely, the decision of the Refugee Review Tribunal, is not open to be quashed by application for certiorari.  It follows that the application must be dismissed.

Yes, Mr Horan?

MR HORAN:   I apply for costs, your Honour.

HIS HONOUR:   Yes.  Can you resist that, Mr Fernandez?

MR FERNANDEZ:   I cannot resist that, your Honour.

HIS HONOUR:   The application is dismissed with costs.

AT 11.03 AM THE MATTER WAS CONCLUDED

At 11.04 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicants M141/2004

MR J.G. SINGH:   If the Court pleases, I appear for the applicant.  (instructed by Ravi James)

MR C.J. HORAN:   If the Court pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   What is the position here?  We have, do we not, an affidavit by the applicant of 9 March, I think.  No, an affidavit of ‑ ‑ ‑

MR SINGH:   25 July.

HIS HONOUR:   Is it?

MR SINGH:   The first.

HIS HONOUR:   The first affidavit, yes, was affirmed on 23 July 2004.

MR SINGH:   Yes.

HIS HONOUR:   We then have an affidavit of Gavin Patrick Carroll sworn 9 March 2005, a further affidavit of the applicant affirmed 11 March 2005 and then an affidavit of Selvadurai Raveendran of 9 March 2005, concerning the position of the daughter of the principal applicant.

MR SINGH:   Yes.

HIS HONOUR:   May I take those affidavits as read, counsel?

MR SINGH:   Yes, your Honour.

MR HORAN:   Yes, your Honour.

HIS HONOUR:   Mr Horan, what do you say I should do in this matter?

MR HORAN:   Again, this is an application which is outside the time limits prescribed by the Rules.  I do not have a date of arrival.  I am not sure that one appears on the material, but I could not find one.  The relevant protection visa application was made on 2 November 2001 and was refused by a delegate on 19 March 2002 and that decision was affirmed by the Tribunal in a decision handed down on 11 April 2003.

I understand that there was then an application to the Federal Magistrates Court on 23 May 2003, proceedings MZ543 of 2003, which were dismissed by consent order on 3 June 2004.  The commencement of these proceedings I had written down in my notes the date of 4 November 2004.

HIS HONOUR:   That seems to be founded on what is said in the affidavit but, in fact, I think it is 23 June 2004, is it not?

MR HORAN:   Yes.  That would be consistent with the date of the affidavit which was clearly filed on that date.

HIS HONOUR:   Yes.  The affidavit records on 4 November commenced the proceedings.  In support of that application, affidavit dated 23 July.  Well, I can tell you that the affidavit was in truth filed on 23 July.

MR HORAN:   It is stamped as being filed, yes.

HIS HONOUR:   Yes. 

MR HORAN:   On that basis the period between the handing down of the Tribunal decision and the commencement of these proceedings is approximately 15 months, so it is seven months beyond the time prescribed by the Rules for seeking certiorari and some year or so outside the time prescribed for seeking mandamus.  There is what might be described as a contested or disputed factual issue on the affidavit material filed in this Court, which concerns the entry of the consent orders in the Federal Magistrates Court proceedings.

There have been affidavits filed on behalf of the applicant stating that he did not give authority to his solicitor at the time to sign or file those consent orders.  The solicitor in question has also sworn an affidavit on 21 September 2004.  That is the affidavit of Phillip Reid Dinning.  The solicitor refutes the allegations in the applicant’s affidavit.

HIS HONOUR:   Probably other matters as well.  Now, might I simply ask you as an act of goodwill to explain to him after he leaves the Court that the only thing I have decided is that it is to go to the Federal Magistrates Court.  He will hear from that court what the next steps are. 

MS MACDONNELL:   Yes, your Honour.

HIS HONOUR:   Thank you for your help.  Very well, there will be orders in those terms.

AT 2.44 PM THE MATTER WAS CONCLUDED

At 2.44 pm Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M70/2004

MR HORAN:   Your Honour, at the risk of going backwards, can I just briefly mention again the second matter on the list, which was one of the discontinuances from earlier today.

HIS HONOUR:   Yes.

MR HORAN:   It has been drawn to my attention that that may be similar, in that it is an application involving multiple applicants.

HIS HONOUR:   I see.

MR HORAN:   The notice of discontinuance apparently was signed with the surname, so without identifying which, and then the capacity or underneath the signature was the word “Applicants”.

HIS HONOUR:   For the avoidance of doubt in matter M70/2004 I will make an order dismissing the proceeding for want of prosecution with costs.

MR HORAN:   If the Court pleases.

AT 2.45 PM THE MATTER WAS CONCLUDED

At 2.45 pm Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M220/2004

APPLICANT M220/2004 appeared in person.

MR C.J. HORAN:   I appear for the respondent, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, you, sir, are the applicant, are you?  You have filed an affidavit in this matter on 23 March.  Again, you have no one here to speak on your behalf.  Is that right?

APPLICANT M220/2004:   Yes, that is right.

HIS HONOUR:   Yes, and there is no interpreter to assist you.

APPLICANT M220/2004:   No.

HIS HONOUR:   Perhaps if you would be good enough to take a seat, would you? 

APPLICANT M220/2004:   Thank you.

HIS HONOUR:   Now, Mr Horan, what is the position in 220?

MR HORAN:   It is an application which is filed approximately 18 months after the Tribunal decision and there have been previous proceedings in the Federal Magistrates Court, which were dismissed in August last year.  The applicant arrived in Australia on 25 November 1998 and applied for a protection visa on 17 May 2001.  I am not aware that there is anything in the material as to what happened in between those dates.  The application for a protection visa was refused by a delegate of the Minister on 3 December 2001 and that was then affirmed by the Tribunal on 13 June 2001, which is the ‑ ‑ ‑

HIS HONOUR:   On 13 June the applicant in his affidavit speaks of it as 23 May.  There is always a difficulty about documents bearing one date and being published on a subsequent date.

MR HORAN:   I think that is the explanation, your Honour.  I will just confirm that.  I think the date of the decision was the earlier date and the date of handing down was 13 June.  I should just mention that the Migration Act provides that the relevant date of a tribunal’s decision is the date on which the decision is handed down.

HIS HONOUR:   Yes.

MR HORAN:   The Federal Court application was brought on 4 July 2003 and after being transferred to the Federal Magistrates Court it was dismissed by Federal Magistrate McInnis on 5 August 2004.  The grounds of review in the draft order nisi are unparticularised.  The applicant has filed an affidavit which was sworn on 23 March 2005, which attempts to explain his difficulties in relation to those Federal Court proceedings, including his lack of legal representation which affected the outcome of that case.  However, the respondent submits that there is nothing disclosed in the applicant’s affidavit which constitutes a sufficient explanation for the delay in filing these proceedings, and that in light of the earlier unsuccessful challenge to the Tribunal’s decision that ‑ ‑ ‑

HIS HONOUR:   What happened after the Federal Magistrate dismissed the proceeding on 5 August 2004.  It did not go by way of appeal?

MR HORAN:   I do not believe so.  There is a gap of some four months before the order nisi was filed.  It may be that there was some form of request to the Minister but I am not sure that there is anything in the material which discloses that.

HIS HONOUR:   Yes.

MR HORAN:   I am instructed that there was no appeal, so in those circumstances I would submit that the extension of time should not be granted and the application should be dismissed.

HIS HONOUR:   Yes.  Now, sir, would you mind coming to the middle again, please?  Again, forgive me if I am repeating what I have said in other cases, but it is important that you understand.

The Minister says that your case should be dismissed.  The Minister says your case should be dismissed because she says you have been to the courts once before.  You failed and now you should not be allowed to come again because, among other things, you are out of time, that is, you are late in starting the proceeding.  You are late because there is only six months after the RRT decision when you can come to Court and she says that six months has gone.  That is what is said against you.  Now is your chance to tell me what you want to tell me in answer to that claim, so your turn now.

APPLICANT M220/2004:   Your Honour, there are some wrong information in this.  It is like the date I arrive in Australia, it is not November 25 – it is 1997 August anyway.  So there was some misinterpretation in this document already.  What I am here is because of the RRT decision.  Your Honour, I do not think they consider some details of my applications, especially – it is like the letters from the Ministers I got in and they did not consider any of them and my social environment.  The RRT went two hours continuously and it just only considered what other accidents, what other circumstances I come through, but never considered my view from the Ministers of my social…..I got it on tape so why I am here is they did not consider with reasonable doubts to consider me as a refugee.  The other thing is they never asked me what would happen if I go in there, what other circumstance will happen.  They never come across such things either.

I am sorry about the Magistrates Court, your Honour.  I know I was not prepared.  I was going through a bad period at that time.  One of my friends died so I realise – I thought Federal Court will be like RRT…..which was not anyway, so, your Honour, I did not have any support.  I mean, at the moment, I am getting support from the Asylum Seekers, but at this stage at Magistrates Court I never had support from anybody, so I just even could not put affidavit form for Federal Court either.  So I just went there but they gave me a…..so I did not have a chance to convince on papers.

So I just think even the RRT just went to a stretch for two hours.  Basically, what I am trying to say is the way they conduct RRT was not fair enough for me.  I am just asking, your Honour, another chance for me to prove this application and present it.  Yes, that is what I would like to say, your Honour, about that date was I came to Australia in 1997 August and I went for a couple of weeks in…..I am happy to check if the circumstances get better to go but I went for two weeks just to check it out but I did not feel safe enough.  So that is why I came back in 25 November after that.  I was in Sri Lanka for three weeks, so could you please consider this, your Honour, thank you.

HIS HONOUR:   Yes, thank you very much.

The applicant was born in Sri Lanka in 1976.  He came to Australia on a student visa in 1997 but left Australia for a short time before re‑entering the country in November 1998.  In May 2001 he applied for a protection visa.  A delegate of the Minister refused his application on 3 December 2001 and the applicant sought review of that decision by the Refugee Review Tribunal.  On 13 June 2003 the Refugee Review Tribunal affirmed the decision of the delegate to refuse the applicant a protection visa.

The applicant commenced proceedings in the Federal Court of Australia.  Those proceedings were remitted to the Federal Magistrates Court and on 5 August 2004 Federal Magistrate McInnis dismissed the application.  Subsequently, on 21 December 2004 the applicant filed an affidavit in this Court in support of an application for declaration, prohibition, injunction or orders in the nature of certiorari or mandamus directed to the Minister and the Refugee Review Tribunal.

The Minister contends that the application made in this Court is doomed to fail.  The Minister contends that certiorari will not be granted because the time for making application for certiorari to quash the decision of the Refugee Review Tribunal had long since passed by the time the applicant commenced proceedings in this Court and, so the Minister contends, this is not a case proper for any extension of the time within which those proceedings are to be commenced.

As that statement of the argument reveals, the grant of certiorari is central to the success of the applicant’s claim for other relief.  Without certiorari to quash, prohibition will not go to the Tribunal, for the Tribunal has nothing left to do.  Prohibition will not go to the Minister, for the Minister is acting in accordance with the Act.  Mandamus will not go to the Tribunal, because the Tribunal has performed its statutory obligations.

In support of his application for an extension of time, the applicant said that he should have time extended so that he may have another chance to have the courts review the decision of the Tribunal which he contends was not reached lawfully.  He points out that he has not been able to obtain legal representation either to appear on this application or to appear before the Federal Magistrates Court.  As a consequence the applicant fears, indeed, considers, that this want of representation has “significantly affected the outcome of my case”.  He says that if his application fails he faces deportation within a very short time and that he would then fear for his life if he were to be returned to Sri Lanka.

The consequences of refusing an application for extension of the time to the applicant must be assumed to be profound.  The fact remains, however, that the applicant has already once sought but failed to obtain judicial review of the decision of the Tribunal.  To extend the time within which this application may be made insofar as certiorari or mandamus are sought would, in my opinion, not be a proper exercise of the discretion.  It would not be proper, not only because the time limits are there to be observed, but also because, having once resorted to the judicial power to seek a review of the decision which has been made, it would not be right to grant an extension of time to permit still further application for review, at least where it is founded, as it appears to be, on arguments of the same kind as were deployed on the first occasion.

In my opinion, the application for extension of time within which to commence the proceedings for certiorari or mandamus should fail.  It follows that the application would fail.  For those reasons, the application should be dismissed.

MR HORAN:   I seek costs, your Honour.

HIS HONOUR:   Yes, can you resist the order for costs?

APPLICANT M220/2004:   No, I do not have any money.

HIS HONOUR:   The application is dismissed with costs.  Thank you very much.

AT 3.03 PM THE MATTER WAS CONCLUDED

At 3.03 pm Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant M79/2004

MR C.J. HORAN:   If the Court pleases, I appear for the respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   Mr Horan, you are now appearing in this matter, not Mr Heerey, is that right? 

MR HORAN:   I am, yes, your Honour.  If the Court pleases. 

HIS HONOUR:   In M79 we know of no appearance by the applicant, but do you?

MR HORAN:   I do not, your Honour.  I can just check with my instructors.  No, your Honour.

HIS HONOUR:   Yes, perhaps if we can have M79 called.  In the meantime, Mr Horan, what is it you say I should do in this matter?

MR HORAN:   I would submit that the application should be dismissed on the basis that it has been filed outside the time prescribed by the Rules for seeking certiorari and mandamus.

HIS HONOUR:   Or should I simply dismiss it for want of prosecution?

MR HORAN:   Yes, your Honour, that would be an appropriate course.  I think I do have an affidavit of service.

HIS HONOUR:   Just a moment, Mr Horan.

COURT OFFICER:   No appearance, your Honour.

MR HORAN:   If I could file in Court, your Honour, an affidavit of service in this matter.

HIS HONOUR:   Yes, and that deposes to service of the orders made last time, does it?

MR HORAN:   Yes, your Honour, it does, and simply seek that the matter be dismissed for want of prosecution with costs.

HIS HONOUR:   Yes, that affidavit can be filed in Court.  The orders will be:  dismissed for want of prosecution with costs.

AT 3.05 PM THE MATTER WAS CONCLUDED

At 3.05 pm Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant M86/2004

APPLICANT M86/2004 appeared in person.

MR C.J. HORAN:   If the Court pleases, I appear for the respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   Now, Mr Horan, what is the position in this matter?

MR HORAN:   This is a proceeding filed just under two years after the date on which the Tribunal decision was handed down.

HIS HONOUR:   Yes, can I just get the affidavits first.

MR HORAN:   Yes.

HIS HONOUR:   Firstly, we have an affidavit of the applicant sworn 30 March 2005, I believe.  We then have – if I leave aside affidavits of service – an affidavit of the applicant sworn 15 March 2005 and then an affidavit of your instructor sworn 15 October 2004.  Is that right?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   And an initiating affidavit of the applicant filed on 22 April.  Is that right?

MR HORAN:   Yes.

HIS HONOUR:   Now, may we take those affidavits as being read without objection? 

MR HORAN:   Yes, your Honour.

HIS HONOUR:   And what then is the position in the matter?

MR HORAN:   The Tribunal decision was handed down on 10 May 2002 and this application was filed on 22 April 2004, which is just short of two years after the Tribunal decision.  The chronology leading up to the Tribunal’s decision is that the applicant arrived in Australia on 11 July 1997 ‑ ‑ ‑

HIS HONOUR:   But let me interrupt you, forgive me.  Is this then the first resort to the judicial power?

MR HORAN:   No, I am sorry, your Honour.  In between, there was an order nisi application, which was remitted and dismissed by consent in the Federal Magistrates Court in September 2003.

HIS HONOUR:   And was that followed by a section 417?

MR HORAN:   I am not aware, your Honour.  I do not believe so.

HIS HONOUR:   Well, paragraph 8 of the affidavit of the applicant sworn 30 March 2005 speaks of a section 417 request being denied in March 2004.

MR HORAN:   Yes.  That would certainly explain the gap between the dismissal of the Federal Magistrates Court proceedings and the commencement of the current proceedings.

HIS HONOUR:   Now, consistent with what has been done in earlier matters where we have not got to a determination on the merits, but simply institution followed by dismissal by consent, as it happens followed by 417 followed by order nisi, should I not remit the matter?

MR HORAN:   I think subject to – to clarify whether there are in fact any grounds of review advanced on the application as it is currently framed, a number of these applications ‑ ‑ ‑

HIS HONOUR:   Somebody else can have the joy of examining that with great care, I am sure, Mr Horan.

MR HORAN:   Yes, your Honour.  Well, if, in light of what has transpired in the earlier applications, a similar course should be adopted here for consistency.

HIS HONOUR:   Right, I have to deal with this one in the same way, have I not?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   So if I make an order for remitter in the same form as I have made orders for remitter in, amongst other cases, M155 and M158?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   Yes, so remit to the Federal Magistrates?

MR HORAN:   If the Court pleases, yes.

HIS HONOUR:   Yes.  Now, sir, do you mind coming to the centre for just a moment.  The upshot of all that is that I propose to make no decision today except to say that your case should go to the Federal Magistrates Court for that court to decide.

APPLICANT M86/2004:   Okay.

HIS HONOUR:   Do you want to say anything against my doing that?

APPLICANT M86/2004:   No, that is okay.

HIS HONOUR:   Yes, very well.  That order will be made.  There will be orders for remitter in the form earlier described.  Thank you very much for your attendance.  I am sorry we have spent so much of your day, but it has been inevitable.

Now, Mr Horan, I believe that is all the matters but do you believe that is all the matters?

MR HORAN:   I do, your Honour.  That is all the matters on our list.

HIS HONOUR:   I have an evident and morbid fear that I will get through the day and discover some undealt with.  Very well, the Court will adjourn.

AT 3.10 PM THE MATTER WAS CONCLUDED