SZIFP v Minister for Immigration - [2006] FMCA 965

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIFP v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 965

MIGRATION – Refugee – claims to Tribunal lacked detail – failure to attend hearing before Tribunal – grounds in application amount to a request for impermissible merits review – jurisdictional error found in Tribunal’s decision pursuant to s.424A(1) – unwarrantable delay – application for extension of time pursuant to s.477(2)(b) refused – application filed outside the time limits set out in s.477(1) – application dismissed.

Migration Act 1958, ss.36(2), 65, 424A, 424A(1), 476, 477, 477(1), 477(2), 477(2)(b)
Migration Litigation Reform Act 2005, Item 42 of Part 2 of Schedule 1
Federal Magistrates Court Rules 2001, Rules 44.05, 44.12, 44.13

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 6
SZGFR v Minister for Immigration and Multicultural Affairs [2006] FCA 766
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26
Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Applicant S1338 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 52
VQAN v Minister for Immigration and Multicultural and Indigensous Affairs [2003] FCA 1541
R v Australian Broadcasting Tribunal; ex parte Fowler (1980) 31 ALR 565
S58 of 2003 v Minister for Immigration and Multicultural and Indigensous Affairs [2004] FCACF 283

Applicant:	SZIFP
First Respondent:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 300 of 2006

Judgment of:

Nicholls FM

Hearing date:

28 June 2006

Date of Last Submission:

27 April 2006

Delivered at:

Sydney

Delivered on:

11 July 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr. J. Smith

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 300 of 2006

SZIFP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 31 January 2006 for orders that the respondent show cause why a remedy should not be granted to the applicant, in the exercise of the Court’s jurisdiction, pursuant to s.476 of the Migration Act 1958 (“the Act”). The applicant complains of a decision of the Refugee Review Tribunal (“the Tribunal”) made on
24 February 2003 and handed down on 14 March 2003, to affirm the decision of a delegate of the respondent Minister made on 23 February 2002 to refuse the grant of a protection visa to the applicant.
The applicant is a citizen of the People's Republic of China who arrived in Australia on 2 December 2001 and applied for a protection visa on 31 December 2001. When this was refused on 20 February 2002 the applicant sought review of that decision on 25 March 2002 by the Tribunal. The applicant’s claims to protection are set out in his application to the first respondent’s Department, reproduced at Court Book (“CB”) 1 to CB 25, and in an attached statement reproduced at CB 26. The application for review is reproduced at CB 57 to CB 60, and the applicant’s claims in particular are set out in that application at CB 59.
The applicant’s claims before the Tribunal centred around his being a “solicitor” in China, and that he was unable to help Falun Gong practitioners due to the restrictions imposed upon him by the Chinese government. He claimed that he applied for a protection visa in Australia because he was a member and sympathiser of Falun Gong. In a somewhat contradictory statement he also claimed that he could not join Falun Gong (although this could mean that he could not “formally” join) when he was in China because of his occupation but that he joined Falun Gong “in the park” after arrival in Australia. Implicit in this was that as a Falun Gong member he would be harmed if he were to return to China.
By letter dated 25 March 2002 (CB 61 to CB 62), and sent to the applicant's authorised recipient for correspondence (as notified to the Tribunal by the applicant – see CB 58), with a copy sent to the applicant, the Tribunal provided advice as to the process by which it would conduct the review of his application. That letter put the applicant on notice that if the Tribunal was not in a position to make a decision in his favour on what he had put before it, then he would be asked if he wanted to come to a hearing with the Tribunal to give oral evidence and present arguments in support of his claims (CB 61.6).
By letter dated 3 February 2003 the Tribunal wrote to the applicant again, and this also was by letter sent to the applicant’s authorised recipient, with a copy sent to the applicant's residential address (CB 63 and CB 64). See in particular see CB 64 for registered post numbers for each of those letters. The Tribunal advised the applicant that, on the material before it, it was not able to make a decision in his favour and invited him to come to a hearing (scheduled for 18 March 2003) to provide evidence and present arguments in support of his claims. Relevantly, the Tribunal noted as “important information about your hearing” that if he did not attend the hearing, and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice. The applicant was also invited to complete a “Response to Hearing Invitation” form. By way of this form the applicant responded to the Tribunal's invitation and stated that he did not want to come to a hearing, and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow, or enable, him to appear before it (CB 65).
The Tribunal then proceeded to consider the applicant’s claims on what was before it. Its decision record is set out at CB 69 to CB 76. The Tribunal saw the applicant’s claims as fearing Convention based persecution for reason of his imputed political opinion because of his defence of Falun Gong people in China, and that since arrival in Australia he himself had become a Falun Gong practitioner (CB 74.8).
Specifically the Tribunal found:
1)The claims of the applicant were “sketchy and lacking in detailed particulars” (CB 74.8).
2)The applicant had been advised that the Tribunal was unable to make a decision in his favour on what had been put before it, and even though it provided the applicant with the opportunity to provide further information and to attend a hearing before it, applicant chose to do neither (CB 75.2).
3)The applicant had ample opportunity to prepare and present his case (CB 75.3).
4)The applicant was able to obtain a passport in his own name and leave China without any difficulty (CB 75.4).
5)It was satisfied that the applicant had never practiced Falun Gong in China (CB 75.5).
6)There was nothing before it to show that the applicant had come to the adverse attention of the Chinese authorities, and that on the applicant's own admission he was never mistreated by the Chinese authorities prior to his living China (CB 75.7).
7)That in the context of the applicant not appearing either before a Departmental officer or the Tribunal to explain his claims and provide further particulars it could not be satisfied that the applicant would suffer real harm upon his return to China (CB 75.8).
8)In all, it could not be satisfied, given the state of the material before it, that the applicant had a well founded fear of persecution for any Convention reason (CB 75.9).
As stated, the application to the Court, filed on 31 January 2006, is an application for the respondents to show cause why a remedy should not be granted to the applicant in exercise of the Court’s jurisdiction pursuant to s.476 of the Act. Relevantly, Rule 44.05 of the Federal Magistrates Court Rules 2001 (“the Rules”) provides:
“44.05 Application for order to show cause
(1) An application for a remedy to be granted in exercise of the Court's jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the form of application under the Migration Act set out in Part 1 of Schedule 2.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought - the reasons for any delay and the reasons why an extension should be granted.”
Section 477 of the Act which became operational on 1 December 2005, provides for time limits set on applications made to this Court:
“Time limits on applications to the Federal Magistrates Court
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
In his application the applicant asserts that he received notification of the decision on 14 March 2003. As this application was filed after
1 December 2005, then the provisions of s.477 apply. [Section 477 provides that for a remedy to be granted pursuant to s.476 of the Act, in relation to a migration decision, the application to the Court must be made within 28 days of the actual notification of the decision. However, the Tribunal's decision was made, and notified to the applicant prior to 1 December 2005]. Item 42 of Part 2 of Schedule 1 to the Migration Litigation Reform Act 2005 (“the Reform Act”) provides that the applicant is taken to have been actually notified of the Tribunal's decision on 1 December 2005.
Therefore, the applicant was required to file the application within 28 days of 1 December 2005. This was not done. By filing on 31 January 2006 the applicant was over four weeks out of time.
However, s.477(2) provides that the Court may extend that 28 day period by up to 56 days if an application for that order is made within 84 days of the actual notification of decision, and the Court is satisfied that it is in the interests of the administration of justice to do so.
Relevantly, the Rules of this Court also provide:
“44.12 Show cause hearing
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed - adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.
44.13 Relief and grounds
(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.
Note Rule 7.01 provides for the amendment of applications.
(2) At a final hearing following a hearing under rule 44.12, the applicant is confined to the grounds specified in the Court's order to show cause.”
This matter first came on before me on 2 May 2006 (not the first Court date). At that time I had before me:
1)The application filed on 31 January 2006.
2)The applicant’s affidavit affirmed on 27 January 2006 and filed on 31 January 2006 which seeks to file in Court the Tribunal’s decision (the decision was not actually annexed, but nothing was made of this).
3)A response from the respondents filed on 16 February 2006.
4)The first respondent’s written submissions files on 27 April 2006.
I note that the applicant had previously attended at the first Court date in this matter on 16 February 2006 and was assisted at that time by an interpreter in the Mandarin language. He signed short minutes of order, which subsequently became orders of the Court. The applicant was given the opportunity to file and serve any additional material including any amended application. Nothing further was filed by the applicant. At that time the applicant was provided with an opportunity to access the Court’s Legal Advice Scheme. He returned a signed and dated advice that he did not wish to participate in the scheme.
The applicant’s complaints about the Tribunal’s decision were set out as:
“1.The applicant claims that he faces Convention based persecution upon his return to China for the reason of political opinions which will be imputed to him because he presented a member of Falun Gong and made statements in court which were unfavourable to the PRC government's policy on Falun Gong. The Tribunal didn't accept these claims are true. The Tribunal fell into jurisdictional error in making the finding.
2.The Tribunal said: “The applicant's evidence of his present adherence to Falun Gong consists of no more than a few bare assertions. The applicant, who I am prepared to accept is an experienced trial lawyer has provided no supporting evidence which might satisfy me that his clasiming of having taken up the practice of Falun Gong in Australia are genuine.” The Tribunal fell into jurisdictional error in making this finding.”
Before me, on 2 May 2006, the applicant claimed that he had requested access to the Legal Advice Scheme and had heard nothing. Notwithstanding the relevant advice notice on the Court’s file, I saw it appropriate to grant an adjournment to the applicant to enable him to obtain this advice. This was not merely a situation of taking a cautious approach with an applicant from a non-English speaking background who appeared unrepresented before the Court. Relevant to my granting the adjournment was that there appeared to be issues on the face of the application in relation to which the applicant may have gained some benefit from legal advice. In particular:
1)The applicant had applied in his application for an extension of time pursuant to s.477(2) of the Act. He had put nothing before the Court in support of his application and when he appeared before me did not indicate that he understood this issue.
2)The Tribunal decision record (see its “Finding and Reasons”) revealed that amongst other matters the Tribunal made reference to the applicant choosing not to attend an interview before the Minister’s delegate and that the applicant was able to leave China by obtaining a passport in his own name and without hindrance from the Chinese authorities. The question could have been posed at that time as to whether the Tribunal’s decision relied, at least in part, on information not put before the Tribunal for the purposes of the review and in respect of which the Tribunal was obliged to put to the applicant in writing pursuant to s.424A(1) of the Act. Any such failure would mean the decision was infected by jurisdictional error (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”), Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 (“Al Shamry”) and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 6 (“SZEEU”)).
3)The provision of an explanation for what appeared to be a three year delay in the making of the application to the Court, relevant in considering the exercise of the Court’s discretion as to whether or not to grant the relief sought by the applicant.
The applicant appeared unrepresented before me when this matter resumed on 28 June 2006. He again had the assistance of an interpreter in the Mandarin language. Mr. Smith appeared for the respondents. The applicant confirmed that he had consulted a lawyer on the panel of the Legal Advice Scheme (the Court’s Registry also received a report from the lawyer that the consultation and advice had been provided to the applicant). Notwithstanding this, nothing further has been filed by the applicant in support of his application.
Before me the applicant did not address the significant issues arising out of his application. His complaint was:
-The Chinese government did not persecute him. They imposed some restrictions on his speaking out about certain things.
-He sympathised with Falun Gong. He became a “genuine” Falun Gong practitioner after he came to Australia. He has participated in all the major events in protest of the Chinese government, and in protest of their persecution against Falun Gong.
-He was not a refugee before, but is a refugee now. The Chinese government has “sped up” persecution against Falun Gong.
The issues for the Court are:
1)The extension of time for the making of the application pursuant to s.477 of the Act.
2)The grounds raised in the application and whether these reveal jurisdictional error on the part of the Tribunal such that the relief sought should be granted.
3)The impact of the delay (3 years) in bringing the Tribunal’s decision before the Court in terms of the exercise of the Court’s jurisdiction to grant the relief sought.
With the recent Judgment of the Moore J. in SZGFR v Minister for Immigration and Multicultural Affairs [2006] FCA 766 (“SZGFR”) (a matter on appear from the Federal Magistrates Court) particularly in mind, and as it relates to dealy [see SZGFR at [13]] a convenient starting point is to consdier the grounds raised by the applicant in his application.
The applicant’s first complaint is that the Tribunal did not accept as “true” his claims of persecution on return to China because of the imputation to him of political opinions as a result of statements made in Court which were unfavourable to the PRC government's policy on Falun Gong. Mr. Smith submitted that this complaint goes beyond what the Tribunal had to consider, that is, the claims contained at CB 26 and CB 59. He argued that essentially both this ground and the second ground in the application take issue with the findings of fact made by the Tribunal, without specifying how they constitute jurisdictional error, hence seeking impermissible merits review.

The Tribunal acknowledged in its decision record (at CB 74.7) that the applicant had claimed that he faced persecution for reason of imputed political opinion because he had strenuously defended Falun Gong practitioners in China. I do not agree with Mr. Smith’s submission that the first ground purports to raise a claim that was not made before the Tribunal. It is true that his stated claims were:
1)His “ethical” defence of a client who was a Falun Gong member against the authorities.
2)That he became a Falun Gong adherent after coming to Australia and that the Chinese government persecutes Falun Gong practitioners.
In my view however, it was certainly open to the Tribunal, on what was before it, to form the view that what arose from the applicant’s claimed actions as lawyer in China did not amount to a claim that the authorities had imparted to him a certain political view. His “sympathy” for Falun Gong (CB 59.4) and his “arguing cases for clients on true facts without accounting in political intervention” could not give rise to a claim of imputed (on the part of the authorities) political opinion. This is how the Tribunal saw it and this is consistent with what the applicant asserts in his application.
In my view the applicant’s real complaint is that the Tribunal did not see his claim (both as it relates to his claims to have acted “ethically” for Falun Gong clients and as it relates to what the Chinese authorities would make of this) as being “true”. This is similar to his second complaint, that the Tribunal fell into jurisdictional error because it did not accept his claims as they consisted “of no more than a few bare assertions”.
Neither ground sets out why the Tribunal fell into jurisdictional error. Nor can such complaints be made out on what is before me. I agree with Mr. Smith’s submission that both grounds can properly be characterised as an attack on the merits of the findings of the Tribunal. As such they amount to no more than a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
The Tribunal found that the applicant’s claims were “sketchy and lacking in detailed particulars” (CB 74.8). Further, that there was no claim made by the applicant that he had come to the adverse attention of the Chinese authorities, been disciplined, arrested, or detained because of the manner in which he defended his clients (CB 75.4). Setting aside for a moment the issue of “information” relied on by the Tribunal, and looking just at the complaints as stated by the applicant, then it is clear on a plain reading of the Tribunal's “Findings and Reasons” that it articulated the applicant’s claims essentially in terms asserted by the applicant or arising from what the applicant had put, but that it could not be satisfied that there was a real chance that he would be persecuted on return to China because in the absence of detail (CB 75.6). The Tribunal could not reach the requisite level of satisfaction required by the Act (ss.65 and 36(2)), necessary to provide the conditions upon which the protection visa must be granted to the applicant. I cannot see any error, in this regard, in how the Tribunal reached its ultimate conclusion.
Further, I note that the applicant was on very clear notice that on what he had put before the Tribunal, it was unable to make a decision in his favour. He was invited to a hearing and chose not to attend in circumstances where it was quite clear that such a failure had every likelihood of leading to an unfavourable decision for him. As a Full Court of the Federal Court has described in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287, the failure to attend a hearing in such circumstances leads to “the inevitable consequence” of the application being unsuccessful. The application as stated on its face to the Court, does not reveal jurisdictional error on the part of the Tribunal.
Although not raised in the application put to this Court, I did consider whether the Tribunal's decision was infected by jurisdictional error in that the Tribunal may have relied on “information”, which on the authority of SZEEU, SAAP and Al Shamry was “information” not given to the Tribunal by the applicant for the purposes of review, but was in fact provided to the first respondent’s Department, that the Tribunal did not provide to the applicant as required by s.424A.
The Tribunal makes reference in its decision record to the applicant having obtained a passport in his own name in September 2001 (paragraph 37, CB 75), and leaving China without any hindrance from, or difficulty with, the Chinese authorities. It is not apparent that the applicant provided this passport information to the Tribunal. On what is before the Court the information was provided by the applicant to the first respondent’s Department. Second, the Tribunal also makes reference to the applicant not appearing before a Departmental officer to explain his claims, and to provide further particulars (paragraph 39, CB 75). Again this does not appear to have been put before the Tribunal by the applicant.
Mr. Smith accepted that these references would constitute information for the purposes of s.424A. But the respondent’s submission was that both of these pieces of “information” did not constitute part of the reason for the Tribunal’s decision and consistent therefore with what is relevantly set out in SZEEU (and other authorities) there was no obligation of the part of the Tribunal to have provided such information to the applicant pursuant to s.424A(1).
In resolving this issue he submitted that it is necessary to look at the whole of the Tribunal’s “Findings and Reasons”. He submitted firstly, that a “mere mention” of some piece of information within the decision record does not automatically make it a part of the reasons. Secondly, that the Tribunal’s reasons must be read “broadly, rather than narrowly with an eye attuned to the perception or error”. Mr. Smith pressed that in the context of the Tribunal’s earlier references to the applicant’s failure to attend the hearing despite being invited (paragraph 32), lack of detail in his claims (paragraphs 33 to 34), limited nature of information provided (paragraph 35), analysis of the information put before the Tribunal contained in the applicant’s protection visa application (paragraphs 36 and 37) and lack of supporting evidence (paragraph 38), it concluded that it could not be satisfied on the available information that the applicant was a Falun Gong practitioner. He further submitted that the Tribunal’s reference to the applicant’s failure to appear before the Departmental officer (at paragraph 39) was an “explanation” for the “sketchy and lacking in detail”, nature of the claims before it. He submitted therefore, that neither of the two pieces of information above form part of the reasons for the Tribunal’s decision as they were “comments made on the way”, that must be viewed in context of the decision as a whole, which do not go to ascertaining the reason for the Tribunal’s decision, which was based on a lack of satisfaction that the applicant met the Convention definition of a refugee.
I agree with Mr. Smith’s submission as it relates to the reference that the applicant did not appear before the Departmental officer. In my view, both when read as part of the whole of the Tribunal’s decision, and even when read in the part of the decision record where it appears (particularly with the reference to: “In the context of his not appearing…”), the Tribunal’s statement in this regard is seen as a contextual explanation for its decision, rather than as a part of the reasons for the decision. Ultimately, it was the lack of detail (explained by the non-appearance) that led to the Tribunal not being satisfied as to the real chance of serious harm which led to its affirming the delegate’s decision. The Tribunal did not affirm the decision because the applicant did not attend before the delegate.
The Tribunal’s reference to the passport is made at paragraph 37 (CB 75.4) of the Tribunal’s decision record. The core of Mr. Smith’s submission was that what drove the Tribunal to affirm the delegate’s decision was the lack of information before it such that it could reach the requisite level of satisfaction for the protection visa to be granted. His argument was that when viewed in context and in this way, the reference to the passport was only “a comment along the way, not part of the reason”. The reason for the Tribunal’s inability to be satisfied was because of the “sketchy nature” of the claims. The reference to the passport therefore does not form part of this reason.
Mr. Smith’s submission in this regard has strong appeal. Had the Tribunal not made any reference to the passport, its “Findings and Reasons” would have stood up to scrutiny in revealing that it simply could not be satisfied on what was before it. But in my view ultimately the Tribunal’s reference to the passport cannot be simply explained as “only a comment along the way”. The strength of Mr. Smith’s submissions is that clearly the Tribunal’s decision turned on a lack of satisfaction. I am of the view however that its inability to be satisfied was, at least in part and probably even a small part, but a part nonetheless, due to the applicant’s ability to obtain a passport and to leave China without any hindrance and without difficulty from Chinese authorities. The Tribunal clearly saw the applicant’s claims (sketchy as they were) as being linked to the harm that he feared on return from the authorities. In dealing with the issue of what had occurred in the past and in particular as to how the applicant may have been viewed by the authorities, the Tribunal (at paragraph 36 – CB 75.4)) clearly, and consistent with its view of the claims as lacking in detail, noted that there were no claims that he had come to the adverse attention of the authorities. But the Tribunal’s reference to the passport cannot in my view be seen as similarly being part of the “sketchy” or “bare” nature of the claims. The Tribunal also relied on the information that the applicant was able to obtain a passport in his own name and to leave Chian without any hindrance or difficulty to, at least in part, reinforce its finding that he had not had any difficulty from the Chinese authorities in the past. In my view this reference did form (albeit a small) part of the Tribunal’s reasons for its decision. It was not information provided to the Tribunal for the purposes of the review as understood within the binding authority on this issue, and therefore this does reveal jurisdictional error on the part of the Tribunal.
Mr. Smith also pressed that even if jurisdictional error is revealed in the Tribunal’s decision, the Court should in the exercise of its discretion, given the nature of the relief sought by the applicant, in any event refuse the relief and dismiss the application. Mr. Smith submitted that the applicant has not put forward any explanation for the delay in seeking relief from this Court in relation to the Tribunal’s decision. The circumstances are that the Tribunal decision was handed down on 14 March 2003 and sent, on the same day, to the applicant’s representative at the time. This notice made him aware of his right of review, and that it must be exercised within a strictly limited time frame. Nevertheless, the applicant’s application to this Court was lodged almost 3 years later, on 31 January 2006 (which also confirmed the date of notification as 14 March 2003) after being detained and held by the respondent Minister at the Villawood Immigration Detention Centre. Therefore, the respondent submitted that without any explanation from the applicant, this period of three years must be seen as unwarrantable delay and must give rise to strong considerations to refuse relief even if jurisdictional error was to be established.
It is well established that delay is a discretionary criterion for the denial of the relief sought by the applicant, that of certiorari. Also, unreasonable delay may be sufficient to justify discretionary refusal of mandamus: see Aronson and others: ‘Judicial Review of Administrative Action’ Third edition Thomson 2000 Law Book Co. 2004 at page 736 to 737. It is well accepted that relief under s.75(v) of the Australian Constitution is like prerogative relief generally, and is discretionary: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 at [33] and Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1. Further in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 the High Court confirmed that the constitutional writ of prohibition is discretionary, and held that prohibition and mandamus should issue in that case. At [52] and [54] Gaudron and Gummow JJ. said:
“[52] The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves "two separate questions" [134] . The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances.”
“[54] No doubt the discretion with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a federal court and there is no avenue of appeal to this Court under s 73 of the Constitution[106]. The discretion is to be exercised against the background of the animating principle described by Gaudron J in Enfield City Corporation v Development Assessment Commission.”
Further, I note that in SAAP the majority found (essentially) against the Tribunal in circumstances where the Tribunal failed to comply with a mandatory provision contained in Division 4 of Part 7 of the Act. While the majority found the Tribunal’s failure in that case had been a breach of the obligation to accord procedural fairness, and that therefore there was jurisdictional error, all allowed for the possibility that the discretion may be exercised to withhold relief, (but found that there was no such reason evident in the case before them to do so). McHugh J., at [80] said:
“The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.” (Citations deleted)
Hayne J. at [211] stated:
“For the reasons given earlier, the decision reached by the Tribunal is invalid. There is no basis, in this case, on which the undoubted discretion to refuse the relief sought could be exercised against its grant. There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellants said to stand in their way…”
Kirby J. in dealing with the discretionary issue said at [174]:
“I also agree with Hayne J that such submissions as were advanced for the refusal of relief on discretionary grounds are unconvincing and should be rejected.”
In SAAP those submissions primarily concerned issues of procedural fairness arising out of the particular circumstances involved in that case. There was no issue apparent in relation to unwarrantable delay, or acquiescence, or unclean hands on the part of the applicant.
Even further, I note that as has been said, the issue of the period of such delay should not be reduced to a mere mathematical (“arithmetic”) formula. I refer to Applicant S1338 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 52 where Stone J., at [20] states:
“Having said this, I do not consider that the question of unwarrantable delay ought to be answered simply by accumulating periods of delay in the conduct of the proceedings, without regard to the circumstances surrounding this delay; it is not a simple arithmetic exercise…”
In a recent Federal Court decision, SZGFR, Moore J. states at [13]:
“After considering independent evidence, including a report that the Fijian government is pursuing the policy of affirmative action in favour of ethnic Fijians. The Tribunal found that the First Applicant did not have a well founded fear of being persecuted for his political opinion, and that the Second Applicant did not have a well founded fear of persecution by reason of her membership of a particular social group, being her husband's family. Accordingly, the Tribunal affirmed the decision of the Minister's delegate not to grant their applications for protection visas.”
In VQAN v Minister for Immigration and Multicultural and Indigensous Affairs [2003] FCA 1541 (“VQAN”) Heerey J. at [23] stated:
“If, as I therefore hold, the substantive merits must be considered, two approaches are possible. The substantive arguability might be considered as part of a balancing exercise, so that the longer the delay without reasonable explanation, the stronger would need to be the argument on the substantive merits. Alternatively, the court should proceed to reach a final conclusion one way or the other on the substantive merits and, if satisfied that a case of jurisdictional error is made out, then consider whether relief should be refused because of delay or other discretionary factors. This question was not argued. It is not necessary to express a conclusion because in the view I take the same ultimate result would be reached whichever approach were adopted. I would express a tentative preference for the latter, which seems more consistent with the reasoning of Gaudron and Gummow JJ in Aala at [54] et seq.”
Moore J., in SZGFR, proposed that in determining prospects of success of an applicant’s case it would be necessary for the Court to assess whether the grounds sought can be made out, and then to form a provisional view to be taken into account in exercising discretion. He concluded therefore that the view of the Court in R v Australian Broadcasting Tribunal; ex parte Fowler (1980) 31 ALR 565 does not “sit entirely comfortably” with the reasons given by the Full Court in S58 of 2003 v Minister for Immigration and Multicultural and Indigensous Affairs [2004] FCACF 283 at [12]-[13], where the Court referred to Heerey J. in VQAN at [22]:
“[22] … it would not be proper exercise of discretion to completely ignore the applicant’s prospects of success.”
At least, relevant to the issue of delay, the applicant before me (and the difficulty is that this was not put in any context of explaining the delay in initiating the current proceedings) made vague assertions that he was not aware “of the letters”, and that the “migration agent advised him “not to went [sic: go] further with this proceeding”, and that he “never received anything back from her”. Extending some leeway to the applicant, I still could not see that this amounted to any explanation (let alone a satisfactory explanation) for the delay in bringing the proceedings. If the applicant meant to imply that he did not know of the Tribunal’s decision at the relevant time because of his migration agent then he did not say so before me, let alone provide any evidence that there was any difficulty in this regard. Nor in any event was it clear which “proceedings” the applicant was referring to. The applicant, with the benefit of an interpreter, was able to hear very clear submissions from Mr. Smith on the issue of delay and I specifically invited submissions from him on what Mr. Smith had said. Further, the application to the Court, and ultimately it is signed by the applicant, clearly states the date of notification of the Tribunal’s decision as being “14 Narch [sic March] 2003”. The applicant with the benefit of (now) some legal advice, specific notice of relevance of the issue of delay, both by way of the application for an extension of time, and by what was said at the hearing before me, could provide no explanation (nor did he seek to directly address this issue) for the 3 years delay in bringing the current proceedings.

In relation to the exercise of the discretion pursuant to s.477(2), Mr. Smith submitted that the Court must take into account the strength of the case before it, as well as the reason for the delay and the interests of administration of justice pursuant to s.477(2)(b), in exercising its discretion to grant or refuse relief. Mr. Smith submitted that the consideration of the unexplained delay of three years must weigh the matter against an extension of time under s.477 of the Act. He pressed that while it may appear at “first glance” that the delay under s.477 is from 28 December 2005 to 31 January 2006, it cannot be that that is the only delay that should be taken into account. He submitted that the scheme of the provisions under s.477 in the legislation setting out precise time limits on judicial review applications strives to achieve a balance between the strictness of those time limits, and the interests of applicants who may be caught unawares because of the imposition on 1 December 2005 of those strict time limits. The balance really is struck in two ways, firstly by the deeming provision, which says that if actual notification was received before 1 December 2005 then it is deemed to have been actually notified on 1 December 2005, so that a party notified in November of 2005, is not out of time simply because of a short delay (a month and a half) without being aware of the new legislation. But the limited time frame is not intended for those who would have been aware of the time limits prior to the amendments, and have delayed making their application in any event, without explanation. It is for that reason that the extension of time is a limited one and after the limitation runs out the strict time limits apply and there is no jurisdiction in the Court to hear the application without assessing the reason for the considerable delay prior to 1 December 2005, which is a relevant consideration in determining of what the administration of justice requires.
Section 477(2) of the Act empowers the Court to extend the time within which an applicant may make an application seeking a remedy in the exercise of the Court’s discretion under s.476, where it is in the interests of the administration of justice to do so. Relevant to this consideration is the ultimate strength of the applicant’s case, the reason for the delay in the first instance beyond the 28 day period set out in s.477(1), and the consequences of the impact on the applicant, the respondents and to the public as a whole.
Mr. Smith submitted that an additional relevant factor to be considered was that of the nearly three years delay. As he put it that even where any jurisdictional error may exist the very “strong” consideration of a very long (three year) unexplained delay must also be relevant. As referred to above his argument derived from the view of what the legislature intended in enacting s.477. He submitted that the delay prior to 1 December 2005 is still a relevant consideration in determining what the administration of justice requires and that this is clearly relevant to the exercise of the discretion as set out in s.477(2)(b).
I agree with this submission. The administration of justice and determination of what may constitute matters relevant to this issue must include consideration of relevant statutory intent. In this case clearly the legislature, while making some concessions to those notified of an adverse decision prior to 1 December 2005, did so in circumstances where strict time limits were intended to address those circumstances where applicants failed to act in a timely fashion. I do not see the deeming provision in item 42 of Part 2 of Schedule 1 of the reform Act, as imposing any such limitation on the exercise of the Court’s discretion pursuant to s.477(2). Further, and significantly, I am of the view that the unexplained delay is a relevant factor to the exercise of this discretion, particularly as it is said to be a discretion to make an order in the interests of the administration of justice, because it cannot be in the proper administration of justice to make orders that have no practical effect. Where the Court is faced with a situation where in the exercise of the broader discretion as to whether an order in the nature of certiorari should be made, but such an order would not be made in the exercise of the discretion, then in my view no real purpose can be served by making an order to extend the time pursuant to s.477(2).
In the case before me the Tribunal notified the applicant by appropriate communication with his migration adviser (and authorised recipient for the purposes of correspondence) that it had affirmed the decision to refuse a protection visa to the applicant. This was done in a timely fashion. There is nothing before me to show that the Tribunal did not fulfil all of its obligations in this regard. The applicant’s application to this Court confirms that notification of the Tribunal’s decision occurred on 14 March 2003. The applicant has provided no explanation whatsoever as to why he waited until 31 January 2006, nearly three years later, to come to this Court. No evidence whatsoever has been put before the Court to show that he did not know of the Tribunal’s decision and indeed there is no statement by the applicant to contradict what he clearly put in his application to the Court.
Before the Court the applicant has been given every opportunity. With interpreters in the relevant language he attended at the first Court date where opportunities to present his case were given. He sought on the first occasion before him to be given further opportunity to access free legal advice, even after he had earlier indicated that he did not wish to do so. This opportunity was granted. At the subsequent hearing the Court ensured that the applicant had the opportunity to listen to the submissions by Mr. Smith to gain a further understanding of the relevant issues and in particular the issue of need to explain the lengthy delay. The applicant did not present as an unintelligent or uneducated person. Indeed clearly the Tribunal accepted his claim that he was a lawyer in his own country. I do not mean to imply by this that the applicant would thereby be said to have knowledge of the Australian legal system. But it does in my view go to the issue of the applicant’s capacity, following the opportunities presented to him, to at the very least understand that it was important to provide, or even make some attempt to provide, an explanation of why he waited nearly three years (and it must be said only in circumstances after he was taken into detention by the first respondent) in seeking the relief that he now seeks. Beyond some vague references before me to his “adviser”, which from what he said may have even been confused with references to his “adviser” in the current “proceedings”, the applicant has said nothing to explain the lengthy delay, let alone put any evidence before the Court in support of any argument in his favour.
With relevant authorities in mind as to how the Court should proceed in the exercise of its discretion, this application does not succeed. Notwithstanding the jurisdictional error in the Tribunal’s decision, the applicant’s unexplained and very lengthy delay in coming forward in my view would strongly outweigh the error found. Even if any extension of time pursuant to s.477(2)(b) were to be granted, this would not ultimately assist the applicant as this Court would not grant the relief sought. Nor can I see that it would serve any purpose to make an order pursuant to rule s.477(2)(b) and allow the applicant any further time to seek to explain the delay in the context of the exercise of the Court’s discretion as to whether to grant the relief sought by the applicant. The applicant has been given very fair opportunities to understand this relevant issue and to address it. He has not done so. Having been given a “fair go” already I cannot see the need for any further time being made available to the applicant. In these circumstances, and in consideration of the interests of the administration of justice, no purpose would be served in granting any extension to file his application to this Court. In the circumstances above, there is no real purpose, nor is there any utility, in doing so. Nor most importantly did the applicant before me seek any such further time.
In all therefore it is, in my view, a relevant consideration in the exercise of the discretion pursuant to s.477(2)(b), with regard to all the matters already referred to, that the discretion to extend the time for the making of this application should not be exercised in the applicant’s favour. The application before the Court filed on 31 January 2006 is therefore dismissed on the basis that it is outside the time limits set out in s.477(1) for the making of such applications and the Court does not exercise its discretion in the applicant’s favour pursuant to s.477(2).

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 11 July 2006