SZNQO & Ors v Minister for Immigration & Anor - [2009] FMCA 694

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNQO & ORS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 694

MIGRATION – Review of decision of Refugee Review Tribunal – application for an extension of time – whether the Court has jurisdiction – delay – request for Ministerial intervention – interests of the administration of justice – no prospect of success – applicants did not respond to the invitation for hearing – applicants failed to attend Tribunal hearing – no failure to notify the applicants of the Tribunal’s decision – consideration of relevant legislative scheme – opportunity provided to the applicants to provide information pursuant to s. 425 – requisite level of satisfaction not reached – Tribunal considered the applicants claims – findings open to the Tribunal – no breach of s. 425 – application made out of time – no jurisdiction – application dismissed.

Migration Act 1958 (Cth), ss.417, 477, 477(1), 477(2), 477(3), 476(1), 430A, 430A(3), 430B, 430C, 422B, 65, 36(2), 476(2), 476(4), 425, 426A, 441A, 441C, 441A(4), 441C(4), 425A(4), 426A(2)

Applicants M160/2003 v Minster for Immigration, Multicultural and Indigenous Affairs [2005] FCA 195
NAGG of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2007] FMCA 84
SZHEH v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FMCA 1301
Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576
Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684
Re Ruddock; Ex Parte LX [2003] FCA 561
Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266
Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331
Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 186
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198
M211 of 2003 v Minister for Immigration and Multicultural Affairs (2004) 212 ALR 520
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457
M206 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24
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
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 79 ALJR 1009
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatre (Aust) Ltd (1949) 78 CLR 389
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 372
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83
Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78

First Applicant:

SZNQO

Second Applicant:

SZNQP

Third Applicant:

SZNQQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1334 of 2009

Judgment of:

Nicholls FM

Hearing date:

10 July 2009

Date of Last Submission:

10 July 2009

Delivered at:

Sydney

Delivered on:

22 July 2009

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Appearance for the Respondents:

Ms T. Quinn

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application made on 3 June 2009 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $2,935.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1334 of 2009

SZNQO

First Applicant

SZNQP

Second Applicant

SZNQQ

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 7 May 2007 and handed down on 24 May 2007, which affirmed the decision of a delegate of the respondent Minister to refuse protection visas to the applicants.
The applicants also seek an extension of time for the making of the application to the Court, given that the Tribunal decision was made in May 2007, and the application to the Court was made on 3 June 2009.

Background

The Minister has put a bundle of relevant documents before the Court (the Court Book – “CB”). The following is relevant as background.
The applicants are father (the first named applicant) (“the applicant”), his daughter (“the applicant daughter”), and his son (“the applicant son”). All three are South Korean nationals. The children were adults at the time of the making of an application for protection visas.

On 29 December 2006 only the applicant made claims to be a refugee. His daughter and son applied as members of his family unit (CB 1 to CB 39, with annexures).
The applicant claimed to fear harm from the South Korean authorities because of his involvement in anti-government demonstrations and his opposition to some government policies.

The Delegate

On 31 January 2007 the Minister’s delegate refused the application. The delegate found the application to variously contain insufficient detail, to be lacking in detail and to lack substantiation. Further, that the applicant departed Korea legally on his own passport, and had not indicated any need to circumvent, the departure process, suggesting that he was of no interest to the authorities at the time of his departure (in light of country information available to the delegate).
Even further, the delegate noted that the applicant had not provided an explanation for the delay in applying for protection, given that the applicant arrived in Australia in August 2002, and made his application in January 2007. This coupled with the vague nature of his claims, which were said to be lacking in detail and unsubstantiated by evidence, was such that the delegate could not be satisfied that the applicant had a well-founded fear of persecution for a Convention reason. The application for protection visas by the applicant’s two children was rejected on the basis that to be successful they would need to be the family members of an applicant and who had been granted a protection visa (CB 44 to CB 51).
A copy of a letter, dated 21 January 2007 appears at CB 42 to CB 43, addressed to the applicant at the address for receiving correspondence provided by the applicant (CB 9 and CB or 14). The letter advises all the applicants that their application has been refused, and states that a copy of the delegate’s decision is enclosed.

The Tribunal Application

On 22 February 2007 the applicants applied for review by the Tribunal (CB 60 to CB 63). All three applicants signed the application (CB 63). The address for receiving correspondence was given as the applicant’s residential address.
By letter said to be sent by post on 23 February 2007, the application was acknowledged by the Tribunal (CB 64 to CB 65). A second letter of acknowledgement appears to have been sent on 2 March 2007 (CB 66 to CB 67). This included the second and third named applicants (CB 68).
A letter dated 7 March 2007 (the copy in the Court Book) which bears a hand written notation (that it was posted on 7 March 2007), the

applicants were invited to appear before the Tribunal at a hearing scheduled for 5 April 2007 (CB 69 to CB 70).
It appears that the applicants were then sent a letter dated 30 March 2007, inviting them to the handing down of the decision (CB 72 to CB 73). Having realised that that letter was sent in error, the Tribunal, sent a further letter of 10 April 2007 inviting the applicants to appear before the Tribunal on 7 May 2007. The copy of this letter in the Court Book bears a registered post number (CB 74 to CB 75).

The Tribunal

The applicants did not appear before the Tribunal on the date or time scheduled (3:00pm 7 May 2007 CB 76). The Tribunal then proceeded to make its decision (the decision record is reproduced at CB 83 to CB 89).
The Tribunal explained that the error in sending out the letter of invitation to the handing down, caused the Tribunal, “in fairness to the applicants” to explain the error, and offer the applicants a further opportunity to attend a hearing. The Tribunal noted that in its “second” letter it “made particular reference to their apparent failure to reply to its previous hearing invitation letter of 7 March 2007. It made a special point of asking the applicant to reply, one way or another, to this “new letter” (CB 84). In any event, the Tribunal noted that the applicants made no response to that second letter of invitation, and did not appear at the scheduled hearing on 7 May 2007 (CB 85.1).
The Tribunal accepted the applicant’s claim regarding the existence of a “National Security Law” in Korea and that the law exists in the “context of an uneasy relationship with North Korea”. It also accepted that the applicant had some “reservations” with some aspects of this law (which appeared to form the basis of the applicant’s claim to fear persecutory harm) by reason of his political opinion in Korea.
The Tribunal nonetheless affirmed the decision under review, on the basis that the claims “comprised short unsupported assertions”, that there was no material provided to support the claims, and that there was “insufficient detailed information” for the Tribunal to reach the requisite level of satisfaction. The Tribunal, could not be satisfied on this “scant information” that the applicant nor his children, faced a real chance of Convention related persecution in South Korea. It ultimately concluded that the applicant did not satisfy the requirement for the grant of a protection visa. As no specific Convention claims were made by his two children and that the “fate of their applications” depended on the outcome of their father’s application, it followed that they too could not satisfy the relevant criterion for a protection visa (CB 88).
The material before the Court shows that the applicants were invited to the handing down of this decision by letter dated 7 May 2007. A copy of a registered post “sticker” appears on the face of the copy of the letter contained in the Court Book (CB 78 to CB 79). This letter also appears to have been sent to the relevant address for service.
None of the applicants attended at the handing down (CB 90). Subsequently the decision was sent to the applicants at the address for service by letter dated 24 May 2007. Again a registered post “sticker” appears on the face of the copy reproduced at CB 80 to CB 81.
On 8 May 2009 the applicant requested a copy of the decision (CB 92). This was provided to him at his new address for service provided (CB 93).

Request for Ministerial Intervention

Subsequently by letter dated 11 July 2007 the applicant wrote to the former Minister for Immigration and Citizenship setting out the situation that he claimed to have suffered in Korea, and why he could not return (received by the Minister’s Department on 10 July 2007). While the letter formally sought “amnesty” (CB 52 to CB 53) it appears to have been properly treated by the Minister’s Department as a request for the intervention of the Minister pursuant to s. 417 (CB 54). By letter dated 2 April 2008, the Minister’s Department responded to the applicant’s request. The applicant was advised that the now current Minister for Immigration declined to consider exercising his power to intervene (CB 55).
The applicant again wrote to the Minister by letter dated 25 June 2008 (received by the Minister’s Department on 3 July 2008) again seeking the Minister’s consideration to intervene, particularly in relation to his two children (CB 56 to CB 57). The Minister’s Department ultimately responded by letter dated 29 August 2008 advising that the Minister would not intervene (CB 59).

Application before the Court

The grounds of the application put before the Court are:
“1. The decision made by the Tribunal is void and null by failing to send a decision record to the applicant properly.
2. The respondents requested for any information they need to know to provide the veracity of the applicant’s claim.
3. Not all the information I submitted to the Department of Immigration was properly considered.
4. I did not receive any hearing invitation from the Tribunal”.

The First Court Date

At the first Court date in this matter on 24 June 2009, the applicant appeared in person. He was assisted by an interpreter in the Korean language. The second and third named applicants did not appear. Ms Nandagopal appeared for the first respondent. She sought dismissal of the application on the basis that the application was made out of time (with reference to the s. 477(1) of the Act), and that it was not in the interests of the administration of justice to grant any extension (with reference to s. 477(2) of the Act).
In his application for an extension of time the applicant stated:
“I was advised by a solicitor that there might be an error in the decision made by the tribunal. I appealed to the minister. I had to wait for it result”.
While I permitted the Minister’s representative to provide an outline of the case in support of dismissal for lack of jurisdiction, it was not appropriate in my view that the matter be dealt with conclusively at the first Court date. Amongst other reasons, the Minister’s submissions relied on material in the Court Book which had not been filed at that time, let alone served on the applicant, or provided to the Court.

I granted leave for the Court Book to be filed in Court, and it was served on the applicant on that date.
Further, it was appropriate in my view, that the applicant, who after all appeared unrepresented before the Court, should be given time to obtain advice in light of the outline of the Minister’s case, which he indicated to the Court that he had understood. I urged the applicant to seek further advice from the solicitor that he said he had consulted. Consideration as to the issue of the Court’s jurisdiction was set down for hearing on 10 July 2009.
I also explained to the applicant, that given that his children were adults, and were applicants before Court, there was an expectation that they would also attend Court on that date. If they did not wish to do so or were unable to do so, then the applicant must be in a position to advise the Court that they had agreed to him representing their interests before the Court (noting that, amongst other things, should the application proved to be unsuccessful, then consequences may flow to the second and third applicants – for example a possible costs order).

The Hearing before the Court

On 10 July 2009 the applicant again appeared in person, with the assistance of an interpreter in the Korean language. Ms T. Quinn solicitor, appeared for the first respondent. The other applicants did not appear.
The applicant confirmed that his children did not intend to appear in Court, but that he would represent their interests. He also confirmed that he had sought further legal advice.

The Issues

I satisfied myself that the applicant understood the issues, relevantly, for consideration and that he was seeking review of the decision of the Refugee Review Tribunal affecting him and his two children.
On its face that application appeared to have been made outside the time limit specified in s. 477(1) of the Act. The Minister sought dismissal of his application on the basis that it was made out of time. That in relation to his application for an extension of that time (pursuant to s. 477(2)), the relevant issue was whether it was in the interests of the administration of justice that an extension of time be granted (it was accepted that the applicant had made the relevant application in writing). The matters relevant therefore were whether there was some satisfactory explanation for the delay in making the application to the Court, whether, in any event, there were any prospects of success in relation to the application, any prejudice to the respondent and the impact on the applicants. Noting also the relevance of the interests of the public at large.

The Evidence

Ms Quinn was granted leave to read into evidence the affidavit of Marina Osmo of 7 July 2009 (with annexures), a registry manager with the Refugee Review Tribunal.
Ms Osmo’s evidence went to the issue of procedures in the Tribunal in March 2007, relating to the sending of letters containing invitations to hearing. It specifically went to the issue of the dispatch of the letter of 7 March 2007, inviting the applicants to a hearing on 5 April 2007. The applicant indicated that he had no questions to ask of Ms Osmo.
The applicant also sought leave to read his affidavit of 2 May 2009, which annexed the decision of the Tribunal. But also made the following statement:
“1. I was advised recently that there might be a jurisdictional mistake in the decision made by the Tribunal.
2. I did not receive the Tribunal’s decision record on time”.
The applicant understood that in pressing his request to have the affidavit read before the Court, he may be subject to cross-examination by Ms Quinn. The applicant was content for this course to occur. Leave was granted.
The following relevantly arose from the applicant’s evidence, and as it also arose under cross-examination.
The applicant gave evidence, at his own initiative, that he only found out about the Tribunal’s decision and of the invitation (presumably to the hearing) from the Tribunal “in recent days”. That because of his “poor English” he had been assisted in the past by a person called “James Park” who the applicant now “saw” had “acted very poorly” for him. The applicant stated that when he was invited to the hearing by the Tribunal he was not aware of “what was going on”, and that any request from the Tribunal was never delivered to him, and therefore he did not have any opportunity to respond.
During cross-examination, even taking into account the many difficulties imposed by the applicant’s poor grasp of English, and the need for translation, the applicant’s evidence was not clear as to relevant facts in relation to the history of his applications both before the Minister’s Department, and the Tribunal.
He claimed to have met Mr Park through an acquaintance.

He “thought” that Mr Park had assisted him with his original protection visa application. He was “not quite sure” as to whether the signature at CB 11 (being the relevant part of the application for a protection visa) was his signature or not. Nor could he “remember clearly” the last time that he had spoken with Mr Park. He did say that Mr Park had not ever told him that he had “lost” his case at the Tribunal.
The applicant stated that he did not remember making the application for review to the Tribunal (when he was directed to CB 60). Nonetheless, he “thought” that the signature (CB 63) was his signature. He confirmed that the address provided in the application was his residential address, and the address for correspondence, at that time. His evidence was that he moved from that address subsequently in September or early October of 2008.

He confirmed that Mr Park had helped him with the application to the Tribunal, and that that was the “only” help that he had obtained from Mr Park. The applicant was directed to the letter of 7 March 2007 being the “first” invitation to a hearing (CB 69), and said that he could not “remember clearly” whether he received a letter or not. He did not “think” that he had ever received any letters from the Tribunal.
The applicant gave evidence that both his (adult) children lived with him at that address, and both spoke English. Notwithstanding this, his evidence was that if any correspondence in English had arrived for him, he would go to someone else “who could understand English and ask for help”. But he would not have asked his children. He had “not consulted” with his children in regards to “these matters” (in context I understood this to be the application for protection visa, and review and possibly judicial review).
The applicant’s evidence then became somewhat confused in that he said that the person helping him “now” (not Mr Park) took receipt of any letters from the Tribunal, and that this person read the letters and would tell the applicant their contents. But that this person was not living at his address. He again confirmed that the address to which the letter of invitation of 7 March 2007 was his “correct” address.

The applicant then agreed that if a letter would have been sent by the Tribunal to him at that address it would not have been received by another person.
The applicant said that he was now receiving, in more recent times, help from a person whose last name was “Ho”, and that this person told him that he needed to obtain a statement of the decision from the Tribunal (I understood the applicant’s evidence to be directed to his more recent request of 8 May 2009 for a copy of the Tribunal’s decision record) (see CB 92 and CB 93).
The applicant confirmed that after the decision had been made by the Tribunal in May 2007, he requested intervention by the Minister.

When it was put to the applicant that when he made his request he knew about the Tribunal decision, and that it had gone against him, the applicant responded that he could not remember “clearly” but that he “thought” that he knew about the decision at that time but could not be sure. His evidence as to when he learnt of the outcome of his request to the Minister was that it was not that “long ago”. Again he could not “remember clearly”.
When his attention was directed to a copy of his letter of July 2007 to the Minister, the applicant stated that Mr Ho assisted him with this letter by liaising with a lawyer (a Mr James). His evidence was that he had never met the lawyer “personally”, but that he would deal with him through Mr Ho, and that he continued to receive assistance from that lawyer in this way from that time (including assistance with his request to the Minister).
The applicant also stated that he had not “consulted” with his children in relation to the application to the Court. That he had been too “ashamed” to do so, and that they did not know that he had appeared in Court. But that they knew about Court proceedings “in the past”, including the application of 3 June 2009.
When given the subsequent opportunity the applicant also said:
(1)That after receiving the Tribunal's decision record “not long ago” he realised that he did not know about many “important documents” even though he had had someone helping him.
(2)Therefore he had not been in a position to respond to the Tribunal.
(3)The applicant asked for time to prepare documents “required in this letter” (I understood this to be a reference to the Tribunal’s finding that the applicant’s application contained claims that were unsubstantiated and lacking detail).
(4)The applicant asked the Court that “despite my mistake” to give him an opportunity and that he would do his best to prepare everything that was required.

Consideration

The issue before the Court is whether the application made on 3 June 2009 should now be dismissed because the Court lacks jurisdiction to consider the application.
The current version of s. 477 dealing with the Court’s jurisdiction and relevantly limits on applications to this Court is as follows:
“477(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 35 days of the date of the migration decision.
2. The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 – the date of the written decision under that subsection; or
(b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal – the date of the written statement under subsection 368(1) or 430(1); or
(c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal – the date of the oral decision; or
(d) in any other case – the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of the date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”
The current version of s. 477 was introduced to the Act by the Migration Legislation Amendment Act (No.1) 2009 10 of 2009 (see sub-section 2 and s. 3 and sch. 2 item 2). This section became operational on 15 March 2009.
The facts before the Court are that the date of the Tribunal’s decision is 24 May 2007. At the time of the making of the Tribunal’s decision, relevant provisions then in force meant that the day of handing down not the date of the signing of the decision was the date of the decision (see s. 430B(4) of the Act as it then was).
Given the transitional provisions related to the introduction of the current version of s. 477 (see sch. 1 item 17 and sch. 2 item 7 sub-section 2 and sch. 3 item 2), and given that the decision was made prior to the date of operation of the current version, that is 15 March 2009, the 35 day period specified in s. 477(1) for the purposes of the current case begins from 15 March 2009. The application to the Court was made on 3 June 2009 which is outside the 35 day period. The Court therefore does not have jurisdiction to consider the application pursuant to s. 477(1).
The issue then is whether it is appropriate for the Court to extend that 35 day period in the interests of the administration of justice. I note that for the purposes of s. 477(2)(a) an application has been made in writing to this Court, and the applicant has specified, albeit in general terms, why he considers it necessary in the interest of the administration of justice for the Court to make an order extending the time. This is, that the applicant has advice that there may be error in the Tribunal’s decision, and that he seeks to explain the delay in applying for judicial review, because he was awaiting the outcome of his requests for Ministerial intervention.
The issue therefore is whether the Court in the interests of the administration of justice should make such an order.
Ms Quinn submitted that the Minister opposed the making of such an order on the basis of the length of the delay in making the application, and that, in any event, the grounds of the application for review do not disclose reasonable prospects of success.
In submissions Ms Quinn sought to distinguish the period of delay or more properly the time taken for the applicant to have made his application for the purposes of s. 477(1) and separately for the purposes of s. 477(2)(b), that is the consideration of what is in the interests of the administration of justice.
I agree with Ms Quinn that for the purposes of s. 477(1), the relevant time in the circumstances of this case, and taking into account the relevant transitional arrangements starts from 15 March 2009.
However, I do not understand those transitional arrangements to extend and apply to a consideration of what is necessary in the interest of the administration of justice in considering the delay in coming to this Court.
In this regard therefore, consideration must be given, to when the applicant knew of the Tribunal’s decision, which was adverse to him, and what he did then, in seeking to address a decision by which he is clearly now aggrieved.
On the question of when the applicant became aware of the Tribunal’s decision, I note that the Tribunal sought to notify the applicants of its decision by way of it’s letter of 24 May 2007 (a copy of this letter is reproduced at CB 80 to CB 81). It bears upon its face a registered post number from which it may be inferred, that the Tribunal sent this letter by registered post to the applicant at the address for service.

This appears on the face of the letter and is consistent with the address provided by the applicants in the application for review. It was the address at the relevant times as confirmed by the applicant’s evidence before the Court. What is not before the Court is evidence that this letter was actually sent to the applicant at the address for service by the method which appears on its face.
This is in contrast to the evidence provided by the Minister in relation to the letter of invitation to hearing of 7 March 2007 (CB 69). I note in this regard that the evidence of Ms Osmo refers to procedures used in March 2007 “when sending a letter containing an invitation to hearing” (see paragraph 4 of her affidavit).
Clearly the letter of invitation to the handing down of the Tribunal’s decision of 7 May 2007 (CB 78 or the subsequent letter of the 24 May 2007 enclosing the Tribunal’s decision record) were not letters of invitation to hearing, and therefore, fall outside the scope of the evidence provided by Ms Osmo which in any event relates to procedures in March 2007.
I am satisfied however, given other evidence before the Court, that the applicant was aware of the Tribunal’s decision, at least as at, some days prior to 11 July 2007. This relates to when he sent his first request to the then Minister to intervene and grant him and his children “amnesty”. He certainly would have been aware that the Tribunal had made a decision unfavourable to him by way of the Department’s letter in reply in acknowledging his request, dated 12 July 2007, which makes specific reference to the Minister intervening to substitute a decision of the Refugee Review Tribunal more “favourable” to the applicant.
The applicant’s evidence was not satisfactory as to the receipt of letters from the Tribunal and more generally letters sent to him in English at his home address (which for the purposes of the review and in relation to his request for Ministerial intervention was to the same address as this was the address for service).
Neither was his evidence as to what he did with correspondence which was in English that he received at that address.
The applicant’s children who at the relevant time were both adults, according to the applicant’s evidence lived at the same address with him, and could both speak English (both having lived in Australia since August 2002 and attended school here). The applicant’s evidence was that he did not consult with them about matters relating to the visa application, the application to the Tribunal, and the requests for Ministerial intervention. He said that he was too “ashamed” to do so.
It is difficult to understand why, given the importance of this issue to the applicant, and to his children, why he would not have engaged them on assisting with translating letters from the Australian government and the Refugee Review Tribunal. The applicant’s claim to require protection from the Australian government and his seeking “amnesty” both for himself and his children, was made in circumstances where he claimed to fear for his life and liberty (and that of his children) if they were to return to Korea. Plainly this is an issue of paramount importance.
However, I am prepared to put this issue to one side given the traditional, or cultural, issues that may have come into play. It may very well be that the applicant saw himself as caught between the traditional image of a father as the provider for his family, including the safeguarding of their wellbeing as being inconsistent with seeking their assistance in resolving his communication problem. Given that such a lack of comprehension may be considered as a weakness (even taking into account that the children were both adults). It is conceivable that this is the explanation as to why the applicant said he felt “ashamed” to use his children for this purpose.
However, there can be no doubt that the applicant’s evidence, clearly was that he did employ others to assist him in his attempts to obtain permission to remain in Australia. I do not accept the applicant’s initial evidence that relevant letters in 2007 were received by another person. Ultimately, in cross-examination, the applicant agreed that this was not the case, and that if a letter had been sent to his residential address (which was also his address for service), it would not have been received by another person.
I am satisfied on the best view of the applicant’s evidence, that if letters from an “official source” were received at that address, they would have been received by the applicant who then would have taken them to this “other” person. Initially Mr Park, and then from about the time of the first request for Ministerial intervention, to Mr Ho who on the applicant’s own evidence began to help him from about that time.
I cannot accept the applicant’s evidence that he did not receive any relevant letters from the Tribunal in light of his other very clear evidence that his friend Mr Ho would assist him in translating the letters, and acting as his liaison with the lawyer. Further, in answer to a direct question from Ms Quinn that when he made the request to the Minister for intervention, he knew that the Tribunal's decision was against him. The applicant’s response was that he could not remember “clearly”, but “I think I knew decision at time, but cannot be sure”.
Further, this view of this evidence is supported by one of the applicant’s grounds put forward in support of his application for an extension of time. That is: “I appealed to the minister. I had to wait for it result”. The clear inference from this statement is that the applicant knew of the Tribunal’s decision and chose to seek Ministerial intervention, and did not seek judicial review because he was waiting for the outcome of that intervention.
In all therefore, I am satisfied that the applicant did become aware of the Tribunal’s decision some time after 24 May 2007, and certainly before 11 July 2007 (CB 52). It is clear therefore that from the time that the applicant can be said to have become aware of the Tribunal’s adverse decision that is at least 11 July 2007, he did not make the application to the Court until 3 June 2009, nearly twenty-three months later.
Ms Quinn submitted that the Minister did not seek to rely on the entire period from the date of the Tribunal’s notification of the Tribunal’s decision to the applicant till the making of the application for judicial review. The submission was that the time taken for the responses to the two requests for Ministerial intervention should be counted as a satisfactory explanation for the delay. Ms Quinn submitted that the authorities in this regard were “somewhat inconsistent”.
While it is true that relevant authorities are not unanimous on this point, in my view, the balance of authority binding on this Court would support a proposition that waiting for a response to a s. 417 request, is not of itself a sufficient satisfactory explanation for the delay in seeking judicial review (see Applicants M160/2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 195, NAGG of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2007] FMCA 84, SZHEH v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FMCA 1301. See also Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at [9], Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 Gray J at [9], Re Ruddock; Ex Parte LX [2003] FCA 561 at [42] per Heerey J, Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266, Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331 at [18]-[20] per Weinberg J (see also Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 186), in particular Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 and M211 of 2003 v Minister for Immigration and Multicultural Affairs (2004) 212 ALR 520 and followed subsequently in S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283, SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457, M206 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24).
In any event the Minister only relies on the combination of the two periods of “delay” between notification of the outcome of the first request of intervention and the making of the second request, and the period between the notification of the outcome of the second request for intervention and making of the application to this Court. A period in total of over one year. The response to the first request was dated 2 April 2008. The applicant’s second request was not received in the Department until 3 July 2008, nearly 3 months later. This was ultimately finalised and notified to the applicant on 29 August 2008. This means that there is still an additional unexplained delay of just over nine months until the application for judicial review.
The relief that the applicants seek before this Court is discretionary.

The relief is for writs in the nature of certiorari and mandamus (see generally 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).
In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, the High Court confirmed delay as a discretionary basis for refusing relief (in the context of seeking relief by way of constitutional writs). See in particular [52] to [54] per Gaudron and Gummow JJ and [148] to [149] per Kirby K. See also s. 476(1) of the Act for the jurisdiction of this Court. Further, see McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 79 ALJR 1009 at [80]
“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”.
See also Hayne J at [211] and Kirby J at [174].

I note also R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatre (Aust) Ltd (1949) 78 CLR 389 and Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372.
I agree with Ms Quinn that the delay of one year does remain unexplained before this Court. While the applicant clearly has difficulties in communicating in English, his evidence was that from the time of the making of the first request for intervention he was assisted by his friend Mr Ho who would act in liaison with his lawyer. A lawyer which the applicant said had his business office in Campsie. Despite opportunity given to him, he did not seek to explain this delay. It was plainly open to the applicant to have sought judicial review following the refusal of intervention on the first occasion (with the help of Mr Ho and his lawyer). That he chose not to do so in spite of the availability of legal advice to him is of course a matter for the applicant. But it strengthens the view that the applicant’s subsequent delay remains unexplained. This limb of the Minister’s opposition to the extension of time application therefore, is in my view, made out.
The applicant’s two adult children are also applicants before this Court.
At the conclusion of the hearing on 10 July 2009, I had concerns about the state of knowledge of these two applicant of proceedings before the Court, given the applicant’s evidence that he had not consulted with his children in relation to his appearance in Court on their behalf or at best given the applicant’s confused state of his evidence in this regard, and given his evidence that he had been too ashamed to consult with his children. Further, given his statement from the bar table that he did not know where his children lived and that contacting them was very difficult. I made an order that the applicant use his best endeavours to present his children to the Court on 15 July 2009 for the purpose of the Court being satisfied that the two adult children were aware of the application that been made in their names (an application which they had not signed or otherwise indicated any support) and that they were content for the applicant to represent the interests before Court.
Subsequently on 15 July 2009, the second and third named applicants did appear and satisfied the Court that they were aware of the application made on their behalf to the Court and were content for their father to represent their interests. This understanding was given to the Court after they were put on notice as to the possible consequences (any possible costs order if the application is unsuccessful or any possible impact to their immigration status).
It is clear from the applicant’s evidence that he has had sole conduct of the application for protection visas, the application for review, the requests for Ministerial intervention and the application for judicial review. The other applicants were given the opportunity to say otherwise when they ultimately appeared before the Court. They did not do so.
Any delay as to making the application for judicial review left unexplained by their father remains therefore unexplained by them was well.
In relation to the prospects of success or the merits of the application I note that the four grounds set out in the original application to this Court remain unchanged. This is despite the opportunity given to the applicant at the first Court date, to go back to his lawyer and receive further advice in light of the outline of the Minister’s position provided on that date. The applicant confirmed that he had received his advice, but neither sought to amend the grounds put before the Court, nor to provide any particulars to them, nor did he make any submissions of substance in support of those grounds. Importantly there was no indication from him that any subsequent amendment or particulars would be forthcoming.

Ground One

Ground one in the application complains that the Tribunal’s decision is “void and null” because the Tribunal failed to send a decision record to the applicant “properly”.
Ms Quinn’s submission was that the Minister did not concede that there was any failure to properly notify the applicant of the Tribunal’s decision. But, in any event, any failure of notification does not mean that there was error in the decision itself.
The current legislative scheme in relation to the notification of the Tribunal’s decision was not in force as at May 2007, the relevant time for the purposes of this case. The relevant legislative scheme as to notification of a Tribunal decision as at May 2007 is as follows:
“430A Tribunal must invite parties to handing down of decision
(1) This section applies to any decision on a review by the Tribunal other than the following decisions:
(a) a decision that is given orally;
(b) a decision on the application of a person who is in immigration detention.
(2) The Tribunal must invite the applicant and the Secretary to be present when the decision is handed down.
(3) The Tribunal must give the applicant and the Secretary written notice of the day on which, and the time and place at which, the decision is to be handed down. The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice to the applicant must:
(a) contain a statement of the effect of subsection 430B(6); and
(b) be given to the applicant by one of the methods specified in section 441A.
(5) The notice to the Secretary must be given by one of the methods specified in section 411B.
…
430B Tribunal decision to be handed down
(1) This section applies to any decision on a review by the Tribunal other than the following decisions:
(a) a decision that is given orally;
(b) a decision on the application of a person who is in immigration detention.
(2) On the day, and at the time and place, specified in the notice referred to in section 430A, the decision on the review is to be handed down (on behalf of the Tribunal) by:
(a) the Principle Member; or
(b) a person authorised in writing by the Principle Member to hand down decisions.
An authorisation may set out the circumstances in which a person is authorised to hand down decisions.
(3) The Tribunal’s decision may be handed down:
(a) by reading the outcome of the decision; and
(b) whether or not either or both the applicant and the Secretary are present.
(4) The date of the decision is the date on which the decision is handed down.
(5) If the applicant and the Secretary are present at the handing down of the decision, the Tribunal must give each of them a copy of the statement prepared under subsection 430(1).
(6) If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is handed down; and
(b) by one of the methods specified in section 441A.
(7) If the Secretary is not present at the handing down of the decision, the Tribunal must give to the Secretary a copy of the statement prepared under subsection 430(1). The copy must be given to the Secretary:
(a) within 14 days after the day on which the decision is handed down; and
(b) by one of the methods specified in section 441B.
(8) Without limiting the generality of subsections (6) and (7), an applicant of the Secretary is taken not to be present at the handing down of a decision if:
(a) he or she is not at the same location as that of the person who is handing down the decision when the decision is handed down; and
(b) the decision is being handed down by:
(i) telephone; or
(ii) closed-circuit television; or
(iii) any other means of communication.
(9) A reference to the applicant or the Secretary being present at the handing down of the decision includes a reference to a representative of the applicant or Secretary being present”.
Having regard to this legislative scheme, the Tribunal’s decision was signed on 7 May 2007 (CB 89) (see also the annexure to the applicant’s affidavit of 20 May 2009 at annexure page 6). The applicant was invited to the handing down of the decision by letter dated 7 May 2007, addressed to the applicant at the address for service. In my view, it can be inferred, from the registered post number “sticker” copied on the face of the letter that the letter was sent to the applicants at the address for service.
None of the applicants attended at the handing down. The best evidence before the Court enables an inference to be drawn that the Tribunal’s decision was sent to the applicants at the address for service by way of letter dated 24 May 2007 (see the registered post “sticker” on the copy at CB 80).
Given the view of the applicant’s evidence referred to above I am satisfied the applicants were notified of the Tribunal’s decision in May 2007 or at the latest 7 July 2007. The applicant’s evidence before the Court is such that I accept that the applicant may not have immediately understood the content of any letters received from the Tribunal.

On receiving these letters his evidence also was that he was assisted by his friend and that his friend would then liaise between him and his lawyer. This evidence was inconsistent with his earlier evidence that he never received any letters from the Tribunal. In my view, this earlier evidence must be considered in light of his subsequent evidence. The resolution to the contradiction in the applicant’s evidence, is in my view, that the applicant did receive the letters, did not immediately understand them, but subsequently received assistance from his friend Mr Ho who then also liaised with his lawyer.
On the evidence before the Court. I am satisfied the Tribunal did comply with the relevant statutory scheme. The applicants were invited to the handing down (s. 430A and s. 430B). The applicants did not attend. The Tribunal then notified the applicants of the decision pursuant to s. 430B(6). That is, a copy of the decision was sent within 14 days after the day on which the decision was handed down, by one of the methods specified in s. 441A. That is, by prepaid post to the last address for service (s. 441A(4) as it then was). The applicants are taken to have received the decision record within seven working days of the date of the document dispatch. That is, seven working day from 24 May 2007 (see CB 80).
Section 441A(4) and s. 441C(4) at the relevant times were in the following terms:
“441A Dispatch by prepaid post or by other prepaid means
(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review
…
441C Dispatch by prepaid post or by other prepaid means
(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; or
(b) in any other case – 21 days after the date of the document”.
The applicant was therefore “properly” notified. Ultimately the applicant’s evidence does not reveal the contrary. Further, and in any event I accept Ms Quinn’s submission that even an error in notification could be shown it would not in the circumstances of this case reveal error in the Tribunal’s decision.
In all the circumstances, ground one therefore, does not assist the applicants, in light of the test to be applied in this case. That is there is no merit evident in this ground.

Ground Two

In ground two, the applicant complains, as best as it can be understood, that the Tribunal should have requested information from the applicant to prove “the veracity” of his claims.
This is a case to which s. 422B(1) and (2) of the Act (as s. 422B was prior to 29 June 2007) applies making the matters set out in Division 4 of Part 7 the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]). (See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83).
Ms Quinn submitted that the Tribunal did in fact provide the opportunity for the applicant to give information to it by way of its letter of invitation to the hearing sent pursuant to s. 425.
On the best evidence available to the Court, the Tribunal, acknowledged the application for review on 23 February 2007, and sent a further more complete acknowledgement on 2 March 2007 (see CB 64 and CB 66). Both letters made reference to a hearing, and the possibility of the Tribunal inviting the applicants to a hearing. Amongst other things the hearing was the opportunity for the applicants to provide evidence to the Tribunal which could include: “information or documents you give to the Tribunal”. Further, both letters made reference to: “immediately send us any documents, information or other evidence you want the Tribunal to consider…” (see CB 65.5 and CB 67.5).
The applicants were subsequently invited to a hearing by way of the letters of 7 March 2007, and then 10 April 2007 (see CB 69 and CB 74) (see above and further in discussion under ground four).
Further, in my view, the applicant’s ground, as stated, misunderstands the nature of the task for the Tribunal. It is not for the Tribunal to “prove” or “disprove” an applicant’s claims (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451)).
The relevant legislative scheme requires the Tribunal to reach a requisite level of satisfaction that an applicant, in effect, meets the definition of “refugee” as set out in Article 1A(2) of the UN Refugees Convention (ss. 65 and 36(2) of the Act (see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73)).
The applicants were given the opportunity to come before the Tribunal and provide evidence, information, and any documentation in support of his claims. The applicants did not respond to the invitation or attend the hearing. In these circumstances and subject also to what is discussed below, it was open to the Tribunal to find that the matters advanced by the applicant in his application for a protection visa were so devoid of detail and substantiation, that it could not reach the requisite level of satisfaction. This indeed, had been the finding of the delegate in relation to the very same material.
Ground two therefore does not reveal merit or prospect of success for the applicants.

Ground Three

In ground three the complaint is that the “Department of Immigration” did not properly consider all of the information that was submitted to it.
If this is a complaint about the delegate’s decision, then this Court does not have jurisdiction to consider such a complaint. The delegate’s decision is a “primary decision” within the meaning given by s. 476(2) and (4) of the Act. The Court has no jurisdiction in relation to such a decision.
If the applicant seeks to complain that the Tribunal did not properly consider all of the information that he had submitted to the Minister’s Department, then on what is before the Court, any such complaint cannot succeed. The Tribunal did have regard to all the material before the delegate (CB 87.3). The Tribunal’s setting out of the claims and evidence (at CB 87), reveals that the Tribunal understood all of the applicant’s claims. That is all of the information that he submitted to the Minister’s Department. As I have already referred to above, the Tribunal properly considered the information, in the sense that it’s finding that the information was of such nature that it could not reach the requisite level of satisfaction was a finding that was open to it on the material before it.
It cannot be, that the applicant complains now, that the Tribunal did not consider the information he submitted to the Department of Immigration with reference to the information contained in his two letters requesting Ministerial intervention pursuant to s. 417, as such letters post date the Tribunal’s decision.
Further, if the applicant seeks now to complain that the Minister’s Department, in advising the Minister or the Minister personally did not properly consider this information, then the Minister’s power is a “non-compellable” power pursuant to s. 417. Section 417(7) expressly states that the Minister does not have a duty to consider whether to exercise the power set out in s. 417(1) in any circumstance.
This ground also does not assist the applicants.

Ground Four

In ground four the applicant complains that he did not receive any hearing invitation from the Tribunal. The Tribunal did seek to invite the applicant to a hearing by way of its two letters of invitation referred to above. I am satisfied by what is contained in the material in the Court Book and on the evidence provided by Ms Osmo, that the Tribunal did send a letter of invitation to a hearing to the applicants pursuant to

s. 425 of the Act (CB 69).
This is the letter 7 March 2007. As Ms Quinn correctly submitted in my view, the discharge of the Tribunal’s obligations pursuant to s. 425 did not require any actual receipt of the letter by the applicant.

The requirement is to send such an invitation, and in so doing, to comply with s. 425A and to state the matter set out in s. 426A. Further, to send the letter by one of the methods set out in s. 441A.

The applicant is then taken to have received the letter within the period referred to in s. 441C.
In the current case the evidence before the Court reveals that the Tribunal’s letter of 7 March 2007 fully complied with the relevant legislative requirements. I am satisfied on the evidence before the Court that the letter of 7 March 2007 was sent by post, by one of the methods set out in s. 441A, that is 441A(4) to the last address for service provided to the Tribunal by the applicant in connection with the review. The applicants are taken to have received the letter seven working days from after the date of the letter (s. 441C(4)).
Even if the applicant’s contradictory evidence (that is that he did not receive any letter from the Tribunal), were to be accepted, this ground, in these circumstances, cannot succeed.
Further, as Ms Quinn submitted, given the applicant’s clear inability to comprehend English, or to write, or speak English, his initial evidence that he could not remember receiving any letters from the Tribunal is explainable in that light. It does not mean however, that in fact the letter was not dispatched, and even that the applicant did not receive such a letter.
The circumstances before the Court do provide “one complication” in relation to this issue.
As set out above prior to the date for the scheduled hearing, the Tribunal also sent to the applicants a letter dated 30 March 2007 (CB 72) inviting them to the handing down of a decision. On realising the mistake that had been made, the Tribunal sent a further letter of invitation to the applicants (CB 74). This letter met all relevant requirements, except that it did not comply with s. 425A(4) (it did not contain a statement of the effect of s. 426A).

In my view the Tribunal discharged its obligation pursuant to s. 425 by its first letter of invitation to hearing. That is the complete answer to the complaint set out in ground four.
In any event to the extent that even if it may be said that the letter sent in error may be said to have “vitiated” this earlier letter, I agree with Ms Quinn, that the applicant’s evidence was that he was not aware of any such letter. There has been no complaint from the applicant, despite opportunity, provided both in the witness box, and in his appearance before the Court, to say that he was confused by this letter. There is nothing to show that he did not attend, or respond to Tribunal’s invitation, because of the letter sent in error. There is nothing before the Court from which to make any finding that the applicant was actually confused by that letter, the very “possible” circumstance which the Tribunal sought to address by sending the second (albeit deficient) letter of invitation.
Ms Quinn also submitted that the “second” letter of invitation to the hearing should more properly be seen as the Tribunal’s exercise of its discretion pursuant to s. 426A(2).
In that the Tribunal sought to reschedule the applicant's appearance before it, in order to enable the applicant to actually appear before the Tribunal. I agree with Ms Quinn that this is an appropriate way to look at the “second” letter of invitation, particularly as the Tribunal itself said that the letter was sent “in fairness to the applicants” (CB 84.8), and in circumstances where there had been no reply to the Tribunal’s first letter of invitation (CB 84.9). That is, not as a letter of invitation to hearing per se, but a letter to enable the applicants to appear before it, given the failure to appear.
In any event on either basis, that is, that the first letter was a complete discharge of the Tribunal’s obligation, or that the second letter should be seen as an exercise of the Tribunal’s power pursuant to s. 426A(2), the exercise of this power did not require the Tribunal to comply with the matters set out in s. 425, 425A, or make, reference to s. 426A, given that there is no legislative prescription for the Tribunal to do so if it seeks to reschedule the applicant’s appearance before it.
In my view, further, this should be seen as a circumstance similar to a situation where an applicant seeks an adjournment or a rescheduling of the scheduled hearing date. Circumstances which do not require any subsequent notification of a rescheduling to fully comply with the relevant legislative requirements (SZEFM v Minister for Immigrationand Multicultural and Indigenous Affairs [2006] FCA 78).
In all therefore ground four does not assist the applicants.

Conclusion

The applicant’s submissions before the Court were made after the applicant had been given a specific opportunity to consult his lawyer. An opportunity which on the applicant’s statement to the Court he pursued (albeit through his friend Mr Ho). Despite this the submissions added little, if anything, to the grounds put before the Court in the originating application.
The applicant’s complaint in essence was that he did not receive any letters from the Tribunal, he did not have any opportunity to explain why he came to Australia, and the purpose for coming to Australia, and that this resulted in an unfavourable decision. He claimed that the decision was “totally unexpected” and sought an opportunity, to be able to appear before the Tribunal to explain his circumstances. Unfortunately for the applicant none of this assists him in light of what has been set out above.
The impact on the applicants if the application for an extension of time is refused would be of some consequence. The applicant however, has been in Australia since 2002. He did not seek to claim persecution in Korea until 2007. Before the Tribunal he was assisted by a friend. When he became aware of the adverse Tribunal decision he sought Ministerial intervention. At that time on his own evidence, he was assisted by a lawyer. In spite of this he chose to delay seeking jurisdictional review.
I am not satisfied that the applicant has satisfactorily explained the delay in seeking review by this Court of the Tribunal’s decision of May 2007, and further, none of the grounds advanced by the applicants now (grounds said by the applicant himself to have been advanced after receiving legal advice) disclose any merit or reasonable prospect of success, if the application for an extension of time were to be granted.
The impact on the applicants must be balanced with the interests of the Australian public. The applicant has had more than a reasonable opportunity to press his claims for protection.
The second and third named applicants have been content to leave this matter to their father. They are adults. If the mater was of such urgency or of weight to them, then the Court would have expected to see some action on their part. Before the Court (brought at the Court’s initiative), and despite opportunity, they showed no energy or impulsion to press the claims made on their behalf.
In all, there is unexplained delay in making the application to the Court. The grounds advanced have no prospects of success.

The applicants have had more than a reasonable opportunity to press their claims both before the Tribunal, and then the Court.
In all the circumstances I am not satisfied that it is in the interests of the administration of justice that the time limit within which to make an application to this Court should be extended, and as the originating application has been made out of time, this Court therefore, lacks jurisdiction in this matter. The application of 3 June 2009 is dismissed.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: S.Polley

Date: 22 July 2009