Daniel v Minister for Immigration & Multicultural & Indigenous Affairs

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FEDERAL COURT OF AUSTRALIA

Daniel v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 21

MIGRATION – application under s 75(v) of the Constitution for the issue of writs of certiorari, mandamus and prohibition, and injunctions and declarations against a decision to deny the applicant a protection visa – where previous application for judicial review dismissed by consent – whether res judicata or Anshun estoppel apply – application for enlargement of time to apply for certiorari and mandamus – request for Ministerial intervention under s 417 of the Migration Act 1958 (Cth) – whether such intervention constitutes a reason for delay – whether there are any exceptional circumstances allowing enlargement of time.

Migration Act 1958 (Cth): ss 36(2), 417, 420(2)(b), 476(1)(e), Pt 8
Constitution of the Commonwealth of Australia 1901 (Cth): s 75(v)

Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931, referred to
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491, applied
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, referred to
Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576, referred to
Re Batuwantudawa [2003] FCA 684, referred to
Opanayaka Mudiyanselage vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 823, referred to
Applicant M29 of 2001 vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1266 referred to
Applicant VUAD of 2003 vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331, referred to
Re South American & Mexican Co; Ex parte Bank of England [1895] 1 Ch 37, referred to
Chamberlain v Deputy Commission of Taxation (1988) 164 CLR 502, referred to
Somanader vMinister for Immigration & Multicultural Affairs (2000) 178 ALR 677, followed
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, applied
Sellamunthu v Ministerfor Immigration & Multicultural Affairs (1999) 90 FCR 287, referred to
Macquarie Bank v National Mutual (1996) 40 NSWLR 543, referred to
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287, referred to
Craig v State of South Australia (1995) 184 CLR 163, referred to
Applicant WAEE vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FCFCA 184, applied
Re Ruddock; Ex parte Reyes (2000) 177 ALR 484, referred to
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, referred to

Spencer Bower, Turner & Handley, The Doctrine of Res Judicata (3rd edn, Butterworths, London, 1996)

RAJAN JOSEPH DANIEL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

V 175 of 2003

GOLDBERG J
29 JANUARY 2004

MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 175 of 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

RAJAN JOSEPH DANIEL
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent

MR B F KISSANE
SITTING AS THE REFUGEE REVIEW TRIBUNAL

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Details
Case
[2004] FCA 21
Decision Date

CaseChat Overview and Summary

In the case of Daniel v Minister for Immigration & Multicultural & Indigenous Affairs, the applicant, a Sri Lankan Tamil national, sought several judicial remedies concerning the refusal of a protection visa by the Minister for Immigration & Multicultural & Indigenous Affairs. The applicant, who had arrived in Australia on a student visa in 1995, applied for a protection visa in 1996, which was subsequently refused. The decision was reviewed by the Migration Review Tribunal, which affirmed the refusal. Dissatisfied with this outcome, the applicant pursued various legal actions, including seeking writs of prohibition, mandamus, certiorari, and an injunction, as well as an extension of time for making the application for a writ of certiorari and mandamus.

The legal issues that the court had to resolve included whether the applicant was entitled to an extension of time to bring his application for judicial review, and if so, whether the circumstances justified such an extension. The court also needed to consider whether the applicant had valid grounds for the issuance of the writs sought, particularly in light of the Tribunal’s decision and the applicant's claims regarding his past activities and the risks he faced in Sri Lanka.

The court held that the applicant's application for an extension of time to bring his application for judicial review was not justified. The court found that the applicant had ample opportunity to lodge his application within the statutory time limits and that there were no exceptional circumstances warranting an extension. Additionally, the court determined that the applicant did not establish a valid basis for the issuance of the writs sought. The court found that the Tribunal's decision was not erroneous or unlawful, and therefore, there was no ground for the applicant to seek certiorari or mandamus. The court also dismissed the applicant’s claim for an injunction.

The orders made by the court were that the application be dismissed and that the applicant pay the respondent’s costs of and incidental to the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of and incidental to the application.

Background

Background to the litigation

The applicant sought the issue of: ·a writ of prohibition prohibiting the Minister or his agents or delegates from acting upon, or giving effect to, proceeding further upon or enforcing the decision of the Tribunal;·a declaration and a writ of mandamus directed to the Minister declaring that the applicant was a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (“the Convention”), pursuant to s 36(2) of the Act and directing the Minister to issue a protection visa;·a writ of certiorari directed to the Tribunal quashing its decision; ·a writ of mandamus directing the Tribunal to rehear and determine the applicant’s application for a protection visa according to law; and·an injunction requiring the principal member of the Tribunal to appoint another member of the Tribunal to rehear and determine the applicant’s application. A number of grounds were set out in the draft order nisi filed with the affidavit but these grounds were not advanced at the hearing. One ground was relied upon to which I shall refer.Background to the proceeding On 26 November 2002 the High Court remitted the matter to the Federal Court (except for one aspect of the application raising issues of unreasonableness) including the leave sought by the applicant to bring part of his application out of time. The applicant seeks an extension of time for making the application for the issue of writs of certiorari and mandamus because of the period of time which has elapsed between the decision of the Tribunal and the initial application to the High Court. The time within which to bring an application for a writ of certiorari is six months after the date of the relevant judgment or order (O 55 r 17 of the High Court Rules), and in the case of a writ of mandamus it is two months (O 55 r 30 of the High Court Rules). The High Court and, by virtue of the order of remittal, the Federal Court, have power pursuant to O 60 r 6 of the High Court Rules to enlarge the time in which an application can be made for these writs: Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931 at [22]. The applicant is a Sri Lankan Tamil, born in February 1961. He studied arts and theology and became a minister in the Assembly of God church. He came to Australia to study and arrived on a student visa on 25 January 1995. On 5 December 1996 he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa. On 28 May 1997 a delegate of the Minister refused to grant the applicant a protection visa and on 11 June 1997 he lodged an application for review with the Tribunal. On 16 July 1999 the Tribunal handed down its decision to affirm the decision of the delegate not to grant a protection visa to the applicant. The applicant claimed that during the Indian Peacekeeping Forces Occupation in 1987 he took up the position of pastor at the Assembly of God church in Chenkaladi and began to help the Liberation Tigers of Tamil Eelam (“LTTE”) with clothes, food and small donations. Later the applicant travelled to Colombo and India and after his return to Sri Lanka he discovered that his church in Chenkaladi had been looted and demolished. In 1992 he joined the church in Nugegoda in Colombo and later became assistant pastor. He claimed that the police were suspicious of the church and believed that he was the confidant of many Tamil suspects. The applicant maintained that he always attracted suspicion from the police. After he left Sri Lanka and came to Australia he received a letter from a relative stating that the police were searching for him.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GOLDBERG J

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Ratio Decidendi

Legal Principle Established

Established by: GOLDBERG J

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