Re Min for Immigration & Anor, Ex parte Quach

[1997] HCATrans 308

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
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  A  31.10.97

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M72 of 1997

Re:THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and ANOTHER

Ex parte:-

QUACH

HAYNE J (In Chambers)

AT MELBOURNE, MONDAY THE 27TH DAY OF OCTOBER 1997

MR T.V. HURLEY:   I appear on behalf of the prosecutor and applicant in today's proceeding (instructed by Barlow & Co).

MR R.R.S. TRACEY, QC:   I appear on behalf of the first respondent, the Minister (instructed by the Australian Government Solicitor).

HIS HONOUR:   Mr Hurley, I have had a brief opportunity to look at the outline of submissions that you supplied to me and the bundle of authorities.  I take it Mr Tracey has a set of these documents?

MR HURLEY:   He does, your Honour.

HIS HONOUR:   Yes.  Perhaps I could just ask Mr Tracey what is the attitude of the respondent to the application, Mr Tracey?

MR TRACEY:   It is opposed for three reasons, your Honour.  Firstly, that it is hopelessly out of time and there have not been proper basis established for the enlargement of time.  Secondly, that it has no merit, and thirdly, that it would be inviting your Honour to remit a matter to the Federal Court that the Federal Court would be unable to entertain in its entirety because of the grounds relied on.

HIS HONOUR:   Yes.  Yes, Mr Hurley.

MR HURLEY:   Your Honour, in relation to the - your Honour, if I could perhaps respond to my friend's objections.  In relation to time, your Honour, the proceeding in this court was filed on 2 September 1997 -no, the affidavit was sworn on 2 September 1997.

HIS HONOUR:   I think from the records I have it seems to have been filed on the 4th.

MR HURLEY:   I thank your Honour for that.  The decision that is the subject of this application is that made by the Refugee Review Tribunal on 29 April 1996.  The affidavit of my client deposes in paragraph 12 that the applicant responded promptly, we would submit, to the decision of the Refugee Review Tribunal.  He commenced a proceeding in the Federal Court on 3 June 1996, that being just over a month after the subject decision of the Refugee Review Tribunal given on 29 April 1996.  As he also deposes in his affidavit, unfortunately the provisions of the Migration Act in part 8, section 480, subsection 1 - I withdraw that - section 478, section 1, paragraph B and section 478, subsection 2, have the effect that his application was outside the time of 28 days and the Federal Court lacked any power to extend the period of 28 days referred to in section 478, subsection 1, paragraph B.

So while his application to the Federal Court was made approximately 34 or 35 days after the Refugee Review Tribunal it was outside time and that proceeding, your Honour, was dismissed in April 1997 by consent orders which are exhibited to my client's affidavit and marked TTQ-17.  Your Honour, there is a period that then passes between that date, the date when the Federal Court proceedings were dismissed on 2 April 1997 to 5 September 1997 when the proceedings which were sworn on 2 September were filed in this court and this proceeding commenced.  It is not denied, your Honour, that the proceeding is outside the time limit prescribed for the rules in this court, those time limits being 60 days is the longer of them, your Honour, for certiorari described in order 60, rule - sorry, order 55, rule 30, your Honour, related to mandamus is two months.

HIS HONOUR:   So mandamus you say, order 55, rule 33?

MR HURLEY:   Rule 30, your Honour.

HIS HONOUR:   Rule 30.  Yes.

MR HURLEY:   Provides a period of two months of the date of the refusal to hear what - and the court has the power under order 60, rule 6, sub-rule 1 to enlarge or abridge the time appointed by these rules, or fixed by an order of the court, or a justice for the doing of an act upon such terms, if any, as the justice of the case requires. 

HIS HONOUR:   Well, put shortly what is the basis for the extension of time that is sought on its face the application, as I understand your submission, is well out of time?

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   Why should I entertain the application for extension which will then lead to the further question of if there is any arguable case on extension why should it not go down to the Federal Court for determination?  But why is there an arguable case for extension?

MR HURLEY:   Your Honour, the arguable case is that the applicant did respond promptly to the initial decision, as I have indicated is that he responded promptly by ‑ ‑ ‑ 

HIS HONOUR:   I understand that, but the critical period would be, would it not, the period between April 97 and the date of dismissal of the Federal Court proceeding and September, the date of institution of the proceedings in this court?

MR HURLEY:   Your Honour, the only submission I can make is that it is not explained in the affidavit material by way of anything specific, your Honour, other than - I cannot take it further than that, your Honour.  It is not explained but perhaps if I could ‑ ‑ ‑ 

HIS HONOUR:   That being so, on the material as it presently stands is there any basis for me extending the time to cover the intervening period of five months?

MR HURLEY:   If I could submit to your Honour - we would submit, your Honour, that if I can submit to your Honour contrary to my friend's submission that this was an application which did have merit and prospects of success on remitter, questions of justices would intrude and ‑ ‑ ‑ 

HIS HONOUR:   But on any view would you need to explain the period of five months?  On its face it is a long time; it is not a matter of days and who knows what explanations can be proffered for delays?  Delays occur.  But absent any reference to why delay has occurred, do you say that the authorities would permit me to extend time?

MR HURLEY:   Your Honour, this matter was considered by your Honour's brother, McHugh J in the matter of Gallo.

HIS HONOUR:   In Gallo, yes.

MR HURLEY:   Which is in our authorities.  We can only offer the submission, your Honour, that if the merits of the case are clear cut, that that is a fact to be weighed in the scales against the delay.  So that the merits of the case, together with the fact that the applicant did initially respond promptly, and there is - people do not rush here, your Honour.

HIS HONOUR:   I can understand the force of the point you make about prompt response.  As I say, at least immediately my concern is with the period after the disposition of that prompt response, rather than any earlier period.  So that the relevant period of delay, at least at first blush, seems to me to be five months and not some longer period.

MR HURLEY:   If your Honour would permit me to take some ‑ ‑ ‑ 

HIS HONOUR:   Yes.

MR HURLEY:   Your Honour, I cannot address your Honour on any factual matters that explain the delay, save that perhaps if your Honour will accept that people assume that this is not a course that people choose to come here to this Court is not, your Honour will be pleased to know, a course that is ‑ ‑ ‑ 

HIS HONOUR:   What you are telling me is it is a place of last resort, Mr Hurley, and that is a submission that could be taken in two ways, and I will take it in the way in which you intend it.

MR HURLEY:   I thank your Honour for that, but that is the submission, your Honour.  There are no factual matters that I can or could address your Honour on that would explain five months.  My client lives in South Australia, but that would not explain five months, and I cannot.

HIS HONOUR:   Well, can I just go back a stage then and make sure that I understand the position that we may have arrived at.  Am I to understand that you accept that the application as presently framed is out of time?

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   Is it clear on the authorities that the lapse of time is a matter to which I should have regard in determining whether to extend time?

MR HURLEY:   Yes, your Honour, I cannot deny that.

HIS HONOUR:   In the absence of explanation for the five month delay, can you point me to any authority that would permit me to extend time other that is than the authority that is found in Gallo?

MR HURLEY:   No, your Honour, save that the rules on its face refer to terms as the justice of the case requires.  So that I can only repeat the point I made before, your Honour.

HIS HONOUR:   Is there a particular passage in Gallo upon which you would place special reliance?  Although I am generally familiar with it and have re-read it recently, it is as well perhaps to ‑ ‑ ‑ 

MR HURLEY: At page 480, your Honour, the citation is at 93 ALR 479 at page 480. It is numbered top right-hand corner, your Honour.

HIS HONOUR:   480, yes, at line?

MR HURLEY:   30, your Honour.

HIS HONOUR:   Yes.

MR HURLEY:   

The discretion to extend time is given for the sole purpose of enabling the Court ...(indistinct)... for extension of time.

Authorities cited, and my friend would no doubt take you to line 45 where his Honour observed:

When the application is for an extension of time in which to file an appeal -

I interpolate, your Honour, this proceeding is - while it is not an appeal, it has got some similarities, your Honour -

it is always necessary to consider the prospects of the applicant succeeding in the appeal.

And the further authority is cited:

It is also necessary to bear in mind in such an application that upon the expiry of the time ...(indistinct)... and further authority is cited.

HIS HONOUR:   It may be also that some reference might be made to 481 line 4 and following, the passage from the advice of the judicial committee in Ratnam in order to justify a Court in extending time: 

There must be some material upon which the Court can exercise its discretion.

And then McHugh J referred to the fact that Ms Gallo had sought in fact to explain her delay, but did so in terms that his Honour did not find persuasive, whereas here there is no explanation for delay, what am I to do?

MR HURLEY:   Your Honour, the submission of my client is that if your Honour considers the merits of the application and finds that my client were to have a meritorious case on remitter, then that is - by the nature of the proceedings a significant factor to do justice between the parties.  I can make no other submission, your Honour, except that.

[10.35am]

HIS HONOUR:   It may be convenient if at this point you could simply state without any substantial development the points which you say are the points which give you a meritorious case.  If you could state them in proposition form, that may help me, Mr Hurley.

MR TRACEY:   Yes, your Honour.  The applicant claims refugee status on the basis that he fears the authorities in Vietnam have rekindled their interest in him.  In support of that, he has submitted material to both hearings of the Refugee Review Tribunal, the first and the second, constituting what the applicant asserts is evidence supporting his claim that the authorities have rekindled their interest.  It is our submission that if the Tribunal accepted that material, it would go a long way to establishing a well founded fear, but the Tribunal did not.

HIS HONOUR:   Accepted in what sense?  Accepted that the particular documents that I see referred to had been issued by authorities in Vietnam?

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   In that sense?

MR HURLEY:   In that sense, accepted they were genuine documents issued by authority in Vietnam.

HIS HONOUR:   And is it the position that the Tribunal did not accept that the documents were genuine?

MR HURLEY:   It is, your Honour.  At TTQ15:

That the reasons of this Tribunal -

those reasons being page 12, if your Honour has TTQ15 ‑ ‑ ‑ 

HIS HONOUR:   Page 12?

MR HURLEY:   Page 12 of the reasons in the first paragraph, your Honour:

It was not until after the primary decision of the delegate on 10 March 1995 -

does your Honour see that first paragraph?

HIS HONOUR:   Yes, I do.

MR HURLEY:   The second sentence on the page.

HIS HONOUR:   Yes.

MR HURLEY:   Your Honour, that is the critical fork in the road and the submission of the applicant is that that finding by the Tribunal is in error and if it is in error, then the decision of the Tribunal should be set aside and ‑ ‑ ‑ 

HIS HONOUR:   That is an error of fact, is it not, if it be an error?

MR HURLEY:   If it be an error.  Your Honour, we would couch it - no, your Honour, it is not an error of fact.  We would submit it is an error that stems from breach of the procedures required - breach of the procedures which the Tribunal is required to comply with in section 420 of the Act, of the Migration Act.

HIS HONOUR:   Yes.

MR HURLEY:   Section 420(2), paragraphs (a) and (b).

HIS HONOUR:   Yes, and what is the error of procedure that you say underlies the wrong finding?

MR HURLEY:   Well, your Honour, simply that the Tribunal - I can put it no higher, your Honour, than that the applicant asserts that the Tribunal's reasoning on this point constituted an unreasonable conclusion.  It was perverse.

HIS HONOUR:   Yes.

MR HURLEY:   And that being, your Honour, therefore a failure to act according to substantial justice and the merits of the case.

HIS HONOUR:   Yes.

MR HURLEY:   And to complete our propositions, your Honour, we would say that is an error of law which goes to the jurisdiction of the Tribunal and will found certiorari to quash the decision and mandamus to require that the application to the RRT be again addressed.

HIS HONOUR:   Yes.

MR HURLEY:   Now, your Honour, critical to that is the second last proposition as to - in answer to your Honour's question - is it a question of fact or a question of law?  This is a - in the authorities - is the recent decision of the full court of the Federal Court in Eshetu which is number 3 in the applicant's authorities, your Honour, and which is subject, I am informed, of an application for special leave to your Honour's Court.

HIS HONOUR:   Instituted but not yet determined.

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   Yes.

MR HURLEY:   In the head-note, your Honour - perhaps if I can take your Honour to head-note 3.

HIS HONOUR:   Yes.

MR HURLEY:  

The operation of the common law rules of natural justice have been replaced in the Migration Act by a set of statutory rules.  Accordingly, the procedures of the Tribunal have not been followed.  A decision of the Tribunal may be set aside.  The question of whether the common law rules of procedural fairness have been met is irrelevant.

That, your Honour, in a nutshell is how my client approaches this court.  He says that the finding that material he submitted was not genuine is one that is perverse and therefore, your Honour, substantial justice was not done, therefore, the statutory code introduced in section 420, subsection 2, has not been complied with and that is an error of law which goes, we submit, to the jurisdiction of the Tribunal.  So, that, your Honour, is the argument that we would put in the scales against the delay of five months.

HIS HONOUR:   Just if I can go back a couple of steps, Mr Hurley, just to make sure that I understand it properly.  The only time limit to which you have taken me relevantly is that in order 55, rule 33, which relates, does it not, only to relief in the nature of mandamus, does it?

MR HURLEY:   It does, your Honour, but there is order 55, rule 17 which relates to certiorari, your Honour.

HIS HONOUR:   If you are six months after ‑ ‑ ‑ 

MR HURLEY:   The date of the judgment or order.

HIS HONOUR:   Well, why are you outside that limit?  Forgive my ignorance.

MR HURLEY:   Well, your Honour, the decision of the RRT - the decision was in fact made ‑ ‑ ‑ 

HIS HONOUR:   '96.  Not '97.  Yes, it helps to get the right year.  Yes.

MR HURLEY:   And part of the delay is explained by what transpired to be an out-of-time appeal to the Federal Court and that is explained in the affidavit by there was controversy at the time as to when the times ran but I will not trouble your Honour with that because it is conceded now that the matter was out-of-time but only by days.  So that explains until April '97 and then there is a delay of five months beyond that so the delay for certiorari really is only the one month outside the six from April; which I suppose upon those mathematics, your Honour, it could be said that perhaps it is just within the range of extendable times.  Does your Honour wish me to address my friend's third point?

HIS HONOUR:   The question of power on remitter.  I think for the moment it may be more convenient if I hear Mr Tracey limited to these two questions of time or principally to this question of time and perhaps very briefly on this question of merit.  I understand, Mr Hurley, that I have confined you perhaps in your submission about the merits of the matter but I have, I think, enough of a flavour of it to understand presently the time question which at the moment at least looms fairly large in my consideration.  Is there anything else you wish to add though about merits before I call on Mr Tracey?

MR HURLEY:   No, your Honour, no.

HIS HONOUR:   Yes, thank you, Mr Hurley.  Mr Tracey, it would, I think, be convenient if you confined your submissions for the moment to the question of time and dealt with the merits only to the extent that it may be necessary to do so in order to deal with the application for extension.

MR TRACEY:   If your Honour pleases.  The time submissions can be made very shortly.  Your Honour has been taken to the time limits that apply in relation to mandamus and certiorari.  The rules do not provide a time limit in relation to prohibition and the explanation of that, I think, is that prohibition is available up until a decision is made as a general rule so there is no need.  Now, this decision was made in April of 1996.  Time started running then.  It did not start running from when the Federal Court proceeding was dismissed.  That is the first point.  The second point is that in relation to mandamus the rule requires special circumstances for an enlargement of time and there are no special circumstances demonstrated and as your Honour has noted the delay between the April dismissal this year and the September commencement of proceedings is wholly unexplained on the material.

Your Honour, the third point is this: the applicant seeks in this order nisi to rely on four grounds.  Two of those four grounds could not have been agitated before the Federal Court even if the proceedings had been brought in a timely way in April last year.  They are the first and the fourth grounds which in turn are unreasonableness and denial of natural justice.  They are both by section 476 of the Migration Act denied to the Federal Court.  So that if the applicant had wanted to agitate those grounds against the Tribunal then this proceeding would have to have been commenced last year because it could not have been dealt with in the Federal Court.

So that whilst it may be said that the fact that some proceedings were brought in the Federal Court; that does not wholly explain the absence of resort in a timely fashion to this court last year because if those grounds were to be agitated this was the only place where they could be agitated.  So that, your Honour, we would submit that the application is considerably out-of-time and is wholly unexplained at least in respect of those two grounds for a period of some 18 months and in those circumstances, your Honour, there is nothing in the observations of McHugh J in Gallo v Dawson that would enable the putting into the balance on the applicant's side the questions that they would submit constitute merit grounds that might counter-balance the absence of explanation.

And as your Honour observed in argument Mrs Gallo did at least attempt to justify before his Honour her reasons for delay and you will recall that she said that it was all too hard for a lay person and she was not in the hands of lawyers and all those sorts of things and his Honour ultimately did not have to pass on that because he found that the application was hopeless on the merits.

But in a case where she wanted to appeal not where there was an application for prerogative relief.  So, it is for those reasons, if your Honour pleases, we submit that there is simply no basis been established upon which your Honour - even if otherwise disposed - could enlarge time to enable this proceeding to go forward.  Your Honour, as to the merits, your Honour will have noted that every one of the four grounds that it is sought to rely on in the order nisi challenges findings relating to credibility and those were findings made by the Tribunal and your Honour has been taken to the passage and your Honour has seen that what the Tribunal said was that given that this matter had been before the Tribunal before and the same grounds were relied on and no documentation of the kind that suddenly manifested itself in the intervening period was before the Tribunal before; that that cast doubt on the credibility of the claim.

But your Honour has seen the passage and the critical reason for the failure of the applicant's case was not that it was the Tribunal's view expressed in the last two sentences in the first paragraph on page 12 ‑ ‑ ‑ 

HIS HONOUR:   This is which exhibit - 15?

MR TRACEY:   Yes, your Honour.

HIS HONOUR:   Yes.

MR TRACEY:   TTQ15, page 12.  It has got 77 in handwriting at the ‑ ‑ ‑ 

HIS HONOUR:   Yes, I have it.

MR TRACEY:   Yes.  Your Honour will see the reference to credibility higher up in the paragraph but, your Honour, what turned the case was what appears in the last two sentences.  Totally unbelievable that the applicant would be re-investigated for events that occurred 15 years ago:

Accordingly, I have no doubt that the applicant does not face a real chance of persecution as a result of the events of 1980.

Now, that is what turned it not any view of credibility.  Now, I am not submitting to your Honour that credibility played no part in it; plainly it did but it was not a big factor and yet it is the only factor that is fixed on in each of the grounds in which the order nisi is sought before your Honour and in those circumstances we would submit to your Honour that it cannot be said that this is a strong or meritorious case.

[10.50am]

In those circumstances, your Honour, we would submit that the case that needs to be made out at the threshold in an application for prerogative relief has simply not been made out here.  Accordingly, your Honour, we would submit that the appropriate order is that the application be dismissed.

HIS HONOUR:   Yes, thank you, Mr Tracey.  Mr Hurley, is there is anything you wish to add in reply?

MR HURLEY:   I do not believe I can take it any further, your Honour.

HIS HONOUR:   Yes, thank you.  I will leave the bench for 10 or 15 minutes and give my judgment shortly after 11 o'clock, ladies and gentlemen.

SHORT ADJOURNMENT

HIS HONOUR:   Thanh Tong Quach applies for an order nisi for prerogative relief directed to the Minister for Immigration and Multicultural Affairs, the Minister responsible for the administration of the Migration Act and to Mr B.F. Kissane who constituted the Refugee Review Tribunal when it determined his application to it.

On 29 April 1996, that Tribunal determined the applicant's application for review of a decision made on 10 March 1995 by a delegate of the Minister for Immigration and Ethnic Affairs that the applicant is not a refugee as provided for by the Immigration Act 1958 and is not entitled to the grant of a protection visa.

The application for refugee status was lodged on 10 March 1992.  An application for review of the delegate's decision refusing to grant a protection visa to the applicant was lodged on 29 March 1995.  That review was first determined on 21 August 1995 but following an appeal to the Federal Court the application was remitted for re-consideration according to law.

On reconsideration, as I have already noted, the application was determined against the applicant on 29 April 1996.  The applicant instituted an appeal to the Federal Court of Australia against that decision on 3 June 1996 outside the time limits prescribed for the bringing of such proceedings.  That appeal was dismissed by that Court on 2 April 1997.

The applicant swore his affidavit in support of the application for an order nisi on 2 September 1997 and the papers were filed on 5 September of this year.  It was accepted by counsel for the applicant that the application for an order nisi was made beyond the times prescribed by order 55, rules 17 and 30 of the Rules of Court and that, accordingly, a discretion had to be exercised in favour of the applicant before granting the order nisi which is sought.

The material that has been filed proffers no explanation of any kind for the elapse of the five months between dismissal of the Federal Court appeal on 2 April 1997 and the swearing of the affidavit in support of the order nisi on 2 September 1997.  Accepting for present purposes (without deciding) that the relevant period to be considered is that period of five months, it is important to note that no explanation of any kind is given for that delay.

That fact, standing alone, may very well be reason enough to conclude that the application for the order nisi should fail. See, for example, Gallo v Dawson (1990) 93 ALR 479, especially at 480 to 481 and the cases there cited. Particular reference might be made in this context to the statement of the Judicial Committee of the Privy Council in Rackman v Cumeraswami (1965) 1 WLR 8 at 12:

The rules of Court must prima facie be obeyed and in order to justify a Court in extending the time during which some step in procedure requires to be taken there must be some material -

I emphasise "some material" -

upon which the Court can exercise its discretion.

I have, however, given some consideration to whether the applicant for relief has made out an arguable case for that relief.  It was submitted that four grounds could be given in support of an order nisi in this matter.  Those grounds were:

(a) The second respondent failed to determine the application for review in RRT application V96/04026 according to law and the decision is thereby beyond his jurisdiction because the decision was based upon the finding of the second-named respondent that the delay of the prosecutor applicant in providing documents or correspondence to either the first named respondent or the second named respondent and the timing of the arrival of the documents so undermined the credibility of the documents and the credibility of the applicant that the applicant's claim to refugee status should fail  and this finding and the decision based on it were each so unreasonable that no reasonable Tribunal could have made either of them.

(b) The second respondent failed to determine the application for review in RRT application V96/04026 according to law and the decision is thereby beyond his jurisdiction because in finding that the delay of the prosecutor applicant in submitting the first named respondent and the second named respondent documents or correspondence which claimed that the Vietnamese authorities were still interested in the prosecutor applicant together with the timing of the arrival of such documents undermined both the credibility of the documents and the applicant the second named respondent conducted a review in accordance with technicalities, legal forms or rules of evidence and contrary to the duty imposed by section 420(2)(a) of the Migration Act.

(c) The second respondent failed to determine the application for review in RRT application V96/04026 according to law and the decision is thereby beyond his jurisdiction because in finding that the delay of the prosecutor applicant in submitting the first named respondent and the second named respondent documents or correspondence which claimed that the Vietnamese authorities were still interested in the prosecutor applicant together with the timing of the arrival of such documents undermined both the credibility of the documents and the applicant, the second named respondent the second named respondent failed to act in the review according to substantial justice and the merits of the case and so acted in breach of the duty imposed by section 420(2)(b) of the Migration Act.

(d) The second respondent failed to determine the application for review in RRT application V96/04026 according to law and the decision is thereby beyond his jurisdiction because the finding by the second named respondent that the delay in the applicant providing the first named respondent and the second named respondent documents or correspondence which claimed that the authorities of Vietnam are still interested in the applicant undermined not only the credibility of the documents but also the applicant was a finding made without the prosecutor/applicant being given a full opportunity to be heard on the issue so that a breach of the rules of natural justice occurred in connection with the making of the decision.

Counsel for the respondent submitted that two of those grounds were grounds which were available only on application for prerogative relief from this Court and that therefore the relevant delay to be considered in considering whether or not to grant an extension of time was a delay of approximately 18 months rather than the 5 months period to which I have earlier referred.  I need not decide whether that is so and I refrain from expressing any opinion upon the legal premise from which the argument proceeds.

It is enough to say that each of the grounds is concerned with the finding that the time at which certain documents were produced in the course of the proceedings relating to the determination of refugee status of the applicant was such as to undermine the credibility of the documents and the credibility of the applicant.  It is as well, however, to note that in the reasons for decision of the Refugee Review Tribunal the Tribunal went on to say that not only did the timing of production of the documents have the effects to which reference is made in the grounds, the Tribunal was of the opinion that:

It is totally unbelievable that the applicant would be re-investigated for events that occurred 15 years ago.

Accordingly, the Tribunal expressed the view that there was no doubt that the applicant does not face a real chance of persecution as a result of the events of 1980 to which he had referred in the course of his application as founding his fear of persecution.  In essence the findings which the applicant seeks to challenge by the proposed proceedings are findings of fact based upon assessments of the credibility of material that was placed before the Tribunal.  In the circumstances, even if otherwise persuaded that a case were made out for extension of time, I am not persuaded that the proposed application enjoys sufficient prospects of success to warrant granting an order nisi.

For these reasons I am of the opinion that the application should be dismissed.  The order is application dismissed.

Other than certifying for the attendance of counsel is there anything else that I need do, gentlemen?

MR TRACEY:   No, thank you, your Honour.

HIS HONOUR:   The order will be application dismissed.  Certify for counsel.  I will adjourn to a date to be fixed.

AT 11.18 AM THE MATTER WAS ADJOURNED
INDEFINITELY