M67 of 2004 v Minister for Immigration
[2005] FMCA 1041
•13 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M67 of 2004 v MINISTER FOR IMMIGRATION | [2005] FMCA 1041 |
| MIGRATION – Review of Refugee Review Tribunal decision – application out of time. |
| Migration Act 1958 (Cth) |
| Re Minister for Immigration; ex parte Hari Das, High Court of Australia transcript, 28 November 2002 Commonwealth ex parte Marks (2000) 177 ALR 491 |
| Applicant: | M67 OF 2004 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1228 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 13 July 2005 |
| Date of Last Submission: | N/A |
| Delivered at: | Melbourne |
| Delivered on: | 13 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms J.K. Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
That the application for an order nisi be dismissed.
That the applicant pay the respondent's costs fixed in the sum of $6500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1228 of 2004
| APPLICANTS M67 OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this case, M67 of 2004, the male applicant arrived in Australia on 10 September 1995 on a visitor visa. His spouse arrived on 10 October 1995, also on a visitor's visa. On 21 December 1995 the applicant applied for a protection visa which was refused on 5 September 1996.
On 27 September 1996 he applied for a review of this decision by the Refugee Review Tribunal (RRT). After a hearing and receiving written submissions, the tribunal affirmed the decision of the delegate (on 18 December 1997).
The applicant then sought judicial review of the RRT decision in the Federal Court of Australia on 16 January 1997. This application was dismissed by consent of the parties on 26 May 1997 with the primary applicant being ordered to pay the respondent's costs.
On 5 July 2004 the present proceedings were commenced in the High Court of Australia seeking writs of prohibition, certiorari, mandamus and an injunction, all directed towards quashing the RRT's decision. The matter was remitted to the Federal Court of Australia on 13 July 2004 and then on 21 September 2004 Marshall J of the Federal Court ordered that the matter be transferred to this court. As it transpires, the application for certiorari and mandamus is effectively around seven years out of time when one has regard to Order 55 Rules 17 and 30 of the High Court Rules 1952 (which were applicable at the relevant time).
Counsel for the Minister points out that Hayne J remitted the matters with the intention that the time limits continue to apply (see Re Minister for Immigration; ex parte Hari Das, High Court of Australia transcript, 28 November 2002). As counsel for the Minister points out in her written submissions, this is consistent with the approach that has been adopted in other cases such as Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576; Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567; Batuwantudawa, in the matter for an application of Writs of Certiorari & Prohibition against Ruddock [2003] FCA 864.
The principles that should be applied in considering whether or not to enlarge the time limit provided for in the High Court rules were considered by McHugh J in Commonwealth ex parte Marks (2000) 177 ALR 491. A number of cases have applied these comments, as listed by the counsel for the Minister in her outline:
Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576; Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567; Applicants A64/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 568; Das v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 489; and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293.
It is important to note that an enlargement of time is not automatic and that the case would need to be exceptional before the time for commencing proceedings was enlarged by many months. In this case, of course, the enlargement sought is many years. It is argued that the extension can only be sought if it is necessary to do justice between the parties, having regard to the history of the matter and the parties’ conduct. The court may take into account the explanation for any delay and the prospects of success in the proceedings.
In this case the applicant seeks to review a decision of the Refugee Review Tribunal after he had already brought proceedings in the Federal Court which were discontinued. This of itself appears to me to militate strongly against granting an extension of time as the applicant has not only had but initially taken up the opportunity to bring proceedings within the relevant time frames that were applicable at the time.
It was suggested by his daughter in argument today that the applicant may have been misled by the nature of the visas that he held during the course of proceedings in the past. However, it appears that he had a temporary visa until September 1997, and this temporary visa was then refused and he was thereafter on bridging visas. It also appears that in the interim the applicant had pursued a family visa and judicial review proceedings with respect to that application which finally ended in June 2002. These matters also militate against an extension of time.
With respect to the substance of the matter, I note that the decision by the Refugee Review Tribunal was largely one based upon the merits of the case. The tribunal found some of the claims to be implausible or fabricated and in substance that they did not accept as credible the claims made by the applicant. The applicant effectively seeks to challenge these factual findings.
In argument today his daughter suggested that he was not given an opportunity to be heard. However, this ground fell away when reference was made to terms of the decision which set out that there was in fact written submissions and an oral hearing, some parts of which were recounted in the decision by the RRT. Whilst it had never been raised before, there was some suggestion today that there may have been misinterpretations by an interpreter at the course of the RRT hearing. However, there is no material before me at all to indicate that that was the case or in what regard that impacted upon the decision. There is no arguable error of law that has been identified on the material before me.
I have perused the documents filed in the High Court and note that there is no particularised claim of a judicially reviewable error that refers to the facts or circumstances of the decision-making process in this case. All that is listed is a catalogue of possible errors or areas of error that a lawyer may look to when reviewing the papers in a case such as this to determine whether or not there is an arguable case. This is given in a list from (a) to (l), but no particulars are given in that document.
In all of the circumstances, I am not satisfied that an extension of time ought to be granted for the time period sought in this case. Nor am I satisfied that the applicant in his written material has established an arguable case, nor in the circumstances of this case (given the time delays and the very late reference to the possibility of some errors in interpretation) that this should found an extension of time for the applicant to make inquiries.
This matter was filed last year in April and the subject of directions in November last year, and no steps have been taken by the applicant to pursue those matters in the interim.
In the circumstances, I therefore refuse the application.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date:
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