S234 of 2003 v Refugee Review Tribunal

[2004] FCA 493

FEDERAL COURT OF AUSTRALIA

S234 of 2003 v Refugee Review Tribunal [2004] FCA 493

S234 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

N 1010 OF 2003

EMMETT J

3 FEBRUARY 2004

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1010 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S234 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 FEBRUARY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed;

2.        the applicant pay the second and third respondents' costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1010 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S234 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE:

3 FEBRUARY 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia on 27 September 1996.  On 2 January 1997, he lodged an application for a protection visa under the Migration Act 1958 (Cth). On 9 July 1997, a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’) refused to grant a protection visa and on 25 July 1997 the applicant sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 21 September 1998 the Tribunal affirmed the decision not to grant a protection visa.

2. On 31 August 2001 the applicant became a party to proceeding S 89 of 1999 in the High Court of Australia, commenced by Ms Lie as the representative of a number of plaintiffs including the applicant.  Pursuant to orders made by Gaudron J on 25 November 2002, the applicant filed a draft order nisi in the High Court of Australia on 28 May 2003.  The draft order nisi sought prerogative writ relief in respect of the decision of the Tribunal on the ground that there was an error of jurisdiction in making the decision and there was a denial of natural justice because of the delegate’s failure to accord the applicant procedural fairness.  No particulars were given. 

3. The order nisi was supported by an affidavit filed on the same day, in which the grounds for relief were expanded.  In essence, the affidavit asserted that the finding by the Tribunal was not formed by a correct application of the relevant law and that, therefore, the Tribunal had no jurisdiction to make the decision because its reasonable satisfaction was not arrived at in accordance with the requirements of the Act.  It is also asserted that the Tribunal consciously chose to ignore the material in support of the applicant’s claims, and therefore the Tribunal’s decision was not based on all the materials before it. 

4. The applicant asserted that the Tribunal did not make the applicant aware of, and give him the opportunity to respond to, adverse materials in the possession of the Tribunal.  No particulars of those assertions were provided. 

5. On 27 October 2003, I directed the applicant to file and serve, no later than 24 November 2003, a statement of contentions of relevant facts and law setting out particulars of the grounds relied upon and the reasons why an extension of time should be granted, together with any affidavits which the applicant intended to rely on at the hearing. 

6. Pursuant to that direction, the applicant filed an outline of submissions on 24 November 2003.  The submissions do not address the question of an extension of time.  Order 55 r 17(1) of the High Court Rules provides that an order nisi for a writ of certiorari must not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, in respect of which the relief is sought.  Order 55 r 30 provides that an application for a writ of mandamus to a judicial tribunal should be made within two months of the date of the refusal to hear or within such further time as is allowed. 

7. In respect of proceedings remitted to this Court by the High Court, the time limits imposed by O 55 r 17 and O 55 r 30 are applicable, (see Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931 at [22]). Certainly, under O 60 r 6, the High Court may enlarge time as the justice of the case requires. That discretion might also be exercised by this Court.

8. The circumstances in which a delay of almost three years would be excused must be very unusual.  The time periods set by the rules give a person affected ample time in which to commence proceedings in the High Court.  In all but very exceptional cases, they should be rigidly applied.  There is no reason why they should not be applied in this case where the delay is in excess of three years. 

9. In any event, the applicant would be entitled to relief only if he were able to demonstrate that the decision of the Tribunal was not a privative clause decision within the meaning of s 474 of the Migration Act 1958 (Cth). The applicant has not drawn attention to any error of law disclosed by the Tribunal’s approach or its decision. The applicant’s contentions do no more than take issue with the Tribunal’s assessment of the applicant’s case. The applicant was provided with an opportunity to attend the hearing and chose not to do so. He was also provided with an opportunity to submit further material in support of his claims and chose not to do so.

10. The Tribunal observed that the applicant had only provided general and vague details about his claims.  Various aspects of his claims and history required further explanation, but because of his decision not to attend the hearing, the Tribunal had no opportunity to inquire further.  The Tribunal considered that it was impossible, on the evidence before it, to assess the nature and extent of any harm that the applicant might have suffered in the past or might suffer in the future.  The applicant was informed in writing that the Tribunal was unable to make a favourable decision on the information available and he provided no further information; nor did he take up the opportunity to appear to present his claims and have them examined. 

11. Even if I were disposed to extend the time within which to bring a proceeding of this nature, the proceeding would be doomed to failure because it is clearly a privative clause decision within the meaning of s 474 and accordingly the Court would have no power to interfere with it. It follows that the application should be dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             26 May 2004

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 February 2004
Date of Judgment:	3 February 2004