S172 of 2003 v Minister for Immigration
[2005] FMCA 1659
•14 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S172 of 2003 v MINISTER FOR IMMIGRATION & ORS | [2005] FMCA 1659 |
| MIGRATION – Application for orders nisi in respect of a decision of the Refugee Review Tribunal – application remitted from the High Court – application late and disclosing no arguable case – application dismissed. |
| High Court Rules Migration Act 1958 (Cth), s.417 |
| Applicant M148/2003 and Minister for Immigration [2004] FMCA 148 Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 |
| Applicant: | APPLICANT S172 OF 2003 |
| First Respondent: Second Respondent: Third Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2291 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 14 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms K Crawley Clayton Utz |
INTERLOCUTORY ORDERS
The application for orders nisi is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2291 of 2005
| APPLICANT S172 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
THE PRINCIPAL MEMBER OF THE
REFUGEE REVIEW TRIBUNAL
Third Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application for orders nisi for the issuing of constitutional writs. The application enclosing the draft orders nisi was filed in the High Court on 7 May 2003. It was supported by an affidavit by the applicant filed on the same day. The affidavit attaches a copy of a decision of the Refugee Review Tribunal (“the RRT”) handed down on 18 April 2002 which is the subject of the application. The application was remitted by the High Court to the Federal Court by consent on 25 August 2003. On 5 August 2005 Emmett J transferred the matter to this Court.
Directions in the proceeding in this Court were given by Registrar Hedge on 21 September 2005. Relevantly, she ordered the applicant to file any further evidence and written submissions on or before 26 October 2005. The Minister was also ordered to serve any written submissions on or before 9 November 2005. The applicant filed a further affidavit on 26 October 2005. This was not served on the respondents. However, Ms Crawley, who represents both the Minister and the RRT this morning, was aware of it. No written submissions were filed by any party but the applicant and the Minister took the opportunity to make oral submissions.
The general principles relating to an application for an order nisi remitted from the High Court and transferred to this Court were set out by Federal Magistrate McInnis in Applicant M148/2003 and Minister for Immigration [2004] FMCA 148. His Honour made a number of salient points. One was that the test for the Court in such a case is whether the applicant has established an arguable case. His Honour clearly distinguished opposition to an application for orders nisi to an application for summary dismissal. His Honour also drew attention to time issues.
Under the High Court Rules time limits apply. For applications for certiorari, the time limit was six months under Order 55, rule 17 as it stood at the time this application was filed and for mandamus, two months, pursuant to Order 55, rule 30. There is a discretion to enlarge time pursuant to Order 60, rule 6. However, the High Court has made clear that exceptional circumstances would need to be shown in order to grant an extension of time beyond 12 months: Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491
I am told and I accept that in this case there were earlier proceedings in the Federal Court in respect of the same RRT decision. Those proceedings were instituted on 13 May 2002 and were discontinued on 28 August 2002. The applicant tells me that he acted upon advice for the purposes of making application for ministerial intervention under s.417 of the Migration Act1958 (Cth). That application was apparently not successful.
The applicant also tells me that he has suffered from personal problems, including the death of his mother, and also some mental disabilities. Indeed, the RRT, in its decision, makes reference to some mental problems suffered by the applicant who enjoyed the benefit of three hearings before the RRT.
While I have sympathy for the applicant's circumstances, in my view, compelling reasons have not been shown for the granting of an extension of time that in this case would exceed 12 months. In addition I am not persuaded that the applicant has an arguable case. The material in the affidavit filed on 26 October 2005 essentially relates to the circumstances in Pakistan, where the applicant comes from. The facts and circumstances referred to in that affidavit essentially post date the decision of the RRT. While those facts and circumstances may be relevant to a consideration of whether the applicant should receive a protection visa, I do not see that they have any bearing on the legal validity of the decision of the RRT.
The earlier affidavit and the application itself filed in the High Court do on their face raise some legal issues, including issues of procedural fairness. However, despite the passage of some two years there is no evidence to support those allegations. The applicant has simply raised allegations. I accept that the applicant did suffer from some mental problems at the time his application was considered by the RRT. Indeed, the presiding member recognised it. That was one of the reasons the applicant received a second and a third hearing. Nevertheless the applicant has had ample opportunity to put before the Court whatever he wished to support his application.
On my reading of the decision and reasons of the RRT, I fail to discern any procedural unfairness or any other legal, let alone jurisdictional, error. These considerations lead me to the view that the application for orders nisi should be dismissed and I do so.
On the question of costs, the application having been dismissed, costs should follow the event. The first respondent, the Minister, seeks an order for costs fixed in the sum of $2,800, taking into account the proceedings in the High Court, the Federal Court and this Court. I am satisfied that that is a reasonable amount when considered on a party/party basis. The applicant is dissatisfied with the dismissal of his application but did not make submissions specifically on the issue of costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $2,800.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 21 November 2005
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