VPAZ v Minister for Immigration
[2004] FMCA 533
•26 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VPAZ v MINISTER FOR IMMIGRATION | [2004] FMCA 533 |
| MIGRATION – Application for protection visa – application to review tribunal decision made 4 years, 3 months after decision – delay in applying not explained – unexplained delay sufficient to justify refusal of application – consideration of matters relevant to delay. |
Judiciary Act 1908
Migration Act1958
Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24
Refugee Review Tribunal; ex parte Aala (2001) 204 CLR 82
Stead v State Government Insurance Commission (1986) 161 CLR
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27
Ex parte Malouf; re G (1943) 43 SR (NSW) 195
R v Williams; Ex parte Lewis (1992) 1 Qd R 643
Re Wakim; ex parte McNally (1999) 198 CLR 592
R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Commonwealth of Australia and Anor; ex parte Marks (2000) HCA 67, 177 ALR 491
S58/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 451
VWVS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 464
Craig v South Australia (1995) 184 CLR 163
Yusuf v Minister for Immigration and Multicultural Affairs (2001) 206 CLR 323
Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548
| Applicant: | VPAZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 492 of 2004 |
| Delivered on: | 26 July 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 26 July 2004 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Belbruno |
| Solicitors for the Applicant: | Joseph Belbruno |
| Counsel for the Respondent: | Dr S. Donaghue |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application is dismissed.
That the applicant pay the respondent's costs fixed at $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 492 of 2004
| VPAZ |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for relief pursuant to s.39B of the Judiciary Act 1908. The applicant is a citizen of China. She arrived in Australia on 25 November 1997. She lodged an application for a protection visa on 22 December 1997. On 4 May 1998, a delegate of the respondent refused to grant that visa. On 3 June 1998, the applicant applied to the Refugee Review Tribunal for review of the delegate's decision. The tribunal affirmed the delegate's decision on 31 March 1999. The applicant was advised of the delegate's decision by letter dated 31 March 1999. That letter first of all advised that the tribunal had decided that the applicant was not a refugee, which meant that the applicant was not entitled to a protection visa. A copy of the tribunal's decision and reasons was enclosed, and then under a heading “Right to Judicial Review” this appeared:
You have the right to seek review of this decision by the Federal Court. An application for review must be lodged with the court within 28 days of notification of the decision and you must name the Minister for Immigration and Multicultural Affairs as the respondent and not the tribunal. If this letter was posted, you are taken to have received it seven days after the date of the letter. I strongly advise you to seek legal advice before seeking review by the court.
The application which this court is dealing with commenced on 2 June 2003 in the Federal Court of Australia. It was transferred to this court by an order of North J on 6 May 2004.
The first issue which arises is whether the application should be refused on discretionary grounds because of the delay in applying. When the tribunal's decision was made in 1999, provisions for review were contained in part 8 of the Migration Act1958 as it then existed. These required any application for review to the Federal Court to be made within 28 days. The applicant, at that time, still had the right to apply to the High Court for prerogative writ. Time limits applied in the case of certiorari and mandamus but not in the case of prohibition. There was an ability to apply for an extension of time in the case of certiorari and mandamus. The applicant did not make an application to the High Court. The only application is the application I am dealing with, which was commenced in the Federal Court on 2 June 2003. It was therefore four years and three months from the date of the decision by the tribunal.
Part 8 of the Migration Act was amended by provisions which came into operation in October 2001. That repealed the previous part 8 and brought in a new regime for applications for review of Refugee Review Tribunal and Migration Review Tribunal decisions. They included s.477 which required proceedings in the Federal Court to be instituted within 28 days of notification of the decision.
As a consequence of the decision of the High Court in Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24, the 28 day time limit applied only to privative clause decisions as those decisions were defined in the act. Plaintiff 157, as is well known, also said that the privative clause provisions did not apply to decisions of a tribunal where there had been jurisdictional error.
To decide whether the 28 day time limit applied, it would be necessary to decide whether or not there had been jurisdictional error. I do not consider that it is necessary to do that. The grant of relief pursuant to s.39B of the Judiciary Act is discretionary. There is no dispute about that but the written contentions filed on behalf of the respondent refer to the Refugee Review Tribunal; ex parte Aala (2001) 204 CLR 82, Stead v State Government Insurance Commission (1986) 161 CLR, Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27.
One matter that is relevant to the exercise of discretion is whether there has been delay in applying for relief. Again, this is a well‑known and well-established principle. The respondent's contentions refer to Ex parte Malouf; re G (1943) 43 SR (NSW) 195, R v Williams; Ex parte Lewis (1992) 1 Qd R 643, Re Wakim; ex parte McNally (1999) 198 CLR 592, and specifically in relation to mandamus R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389. Therefore, although there is no time limit applying to this application, it is still a matter of discretion whether the court should grant relief because of the delay and indeed whether the court should even consider whether there is any substantive merit in the application for relief because of the delay.
The applicant has not sought to put before the court any explanation for delay other than general considerations which might apply to any applicant. No affidavit has been filed and it has not been sought to give any evidence. Therefore, no explanation is offered for the delay of four years and three months. Submissions which have been put by Mr Belbruno have largely referred to the difficulties that applicants for refugee status generally might suffer and what has happened with changes in legislation and the way in which the specific legislation has been interpreted.
So far as the general considerations which apply to applicants for refugee status generally are concerned, they relate to the fact that they are generally indigent people without a right to work in Australia. They are outside their country of origin. Often, they have little or no understanding of the English language. They do not have their normal family and social support networks. It is those types of considerations which Mr Belbruno has referred to.
So far as the High Court is concerned, he referred to the complexities and difficulties of making an application to the High Court and the potential costs which are involved.
So far as changes in the law are concerned, the situation is this: on 31 March 1999, as the law was then, the applicant had 28 days to apply to the Federal Court. There was either no time limit on application to the High Court or a time limit which could be extended upon application to the High Court; not automatic extension of course, but in the exercise of the discretion of a justice of the High Court, application could have been made. Then in October 2001, which was about two and a half years after the decision had been given, a new part 8 came into operation. There was doubt about the interpretation of those provisions, and that doubt so far as time limits are concerned was settled by the decision of the High Court in Plaintiff S157. That was in February 2003. It was not until June 2003 that the applicant applied for relief. So, even if there was anything to be said for the applicant's case because of changes in the law and the time taken to settle doubts about the interpretation of that law, there is still a delay from February to June 2003, a delay of four months.
Dr Donaghue, who appears for the respondent, has referred me firstly to the decision of McHugh J in the High Court of Australia in Re Commonwealth of Australia and Anor; ex parte Marks (2000) HCA 67, 177 ALR 491. His Honour was considering an application for extension of time where there had been application for writs of certiorari and mandamus. At paragraphs 15, 16 and 17 his Honour said this:
An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision by the Australian Industrial Relations Commission made 17 months before he filed his application for relief in this court. Independently, on the merits of the case, I find it difficult to see how a person who with knowledge of the decision delays 17 months before seeking leave would ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.
As a judicial committee of the Privy Council said in Ratnam v Cumarasamy, the Rules of Court must prima facie be obeyed. The time for seeking certiorari is six times and the time for seeking mandamus is twice the period in which an application for special leave to apply to this court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court. An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its right should not be dependent upon whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions in judgments cannot be the hostage of an applicant's search for favourable legal advice.
In all but exceptional cases the inability of an applicant to obtain favourable advice within the two-month period for mandamus and the six-month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that by reason of negligent advice an applicant was deprived of the right to quash a decision or to have it made or have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.
A recent decision in the Federal Court is S58/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 451, a decision of Madgwick J. That was a proceeding which had commenced in the High Court by presentation of a proposed order nisi and was an application for a protection visa. The application was out of time so far as certiorari and mandamus was concerned so his Honour had first to deal with the question of time. The delay there was five years. At paragraph 10 his Honour set out the applicant's explanation. He said this:
In an affidavit the applicant explained his five-year delay in seeking judicial review in respect of the tribunal's decision as follows: "I now will explain the reason why I delayed starting the proceedings. Once the tribunal rejected my application I was shocked and surprised and it took some time for me to accept it.
I wanted to go to court for review but I did not have any financial means to do that so I could not go to court. By the time I realised my mistake, time had passed and I was barred from applying because of time limits. However, I spoke to many people after that on several occasions. Everyone told me about the time limit that will bar any application in the court. However, once the decision in S157 came, there was the possibility that time issue could be overcome and therefore I quickly applied to the High Court to get a remedy in relation to my refugee application."
At paragraph 11 his Honour said:
At the outset one must say that the explanation is unimpressive. The delay was in no sense caused by anyone but the applicant himself. The applicant descended into no detail in relation to his formerly allegedly poor financial position.
At paragraph 16, his Honour referred to a decision by Goldberg J. He said this:
In M206/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 24 Goldberg J observed at paragraph 15, "There are a number of factors which the court must take into account in determining whether an extension or an enlargement of time should be granted. Factors which the court has taken into account in the past include the reason for the delay in applying for the issue of the writs, the length of the delay, whether any decision was made to accept the decision of the tribunal and whether any party may be prejudiced if the extension was granted. There is also an underlying principle that there should be an end to litigation and that the court should seek to achieve justice between the parties."
Madgwick J then went on in paragraph 17:
The first factor in the applicant's favour is that if his asserted fears are genuine and well founded, the case is of great importance to him. Next, the applicant seizes upon the supposed lack of prejudice to the respondent. Of course the minister can conduct the case as well now as five years ago. However, even if the broader detriment to the orderly conduct of the controlled immigration program for which the minister is responsible to the Australian people, should the applicant succeed in his effort to have time enlarged in the case of certiorari and to resist a discretionary denial of the relief claimed by way of prohibition does not fall under the rubric of prejudice. Such a lack of prejudice is only one factor. The lack of forensic prejudice, in my opinion, is strongly outweighed by the other factors referred to in the passages quoted from those two judgments. In any case, the harm for the public interest should the applicant succeed in being pardoned for his delay is highly relevant.
His Honour then said at paragraph 21:
In all these circumstances, in my opinion it would be quite wrong even if the applicant has a good case on its merits for constitutional relief, notwithstanding the possible importance of the case to him, to sanction such a long and poorly explained delay. Where there is a formal time limit, I would not extend time to permit him to claim the relief sought. Further, I would as a matter of discretion decline, on the grounds of the applicant's long and unsatisfactorily explained delay, to grant any relief to which he might otherwise be entitled.
His Honour then went on to say that he considered that the application for constitutional relief appeared to be unmeritorious.
The third of the cases to which Dr Donaghue referred to is VWVS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 464 in which there was a three-year delay. His Honour did examine the tribunal's reasons and said that he could discern no error in the tribunal's reasons for decision, still less any jurisdictional error. He then referred to the lengthy delay which had not been explained.
The basis of the applicant's claim for a protection visa was fear of persecution within the convention definition because of her religious belief and practice. She is a Roman Catholic and she practised her religion in China. There is an officially sanctioned church in China and there is an unofficial church in China, so the tribunal's reasons disclosed. The applicant contended that she wished to pursue her worship through the unofficial church or the church which was sanctioned by the Vatican authorities. The tribunal found that she could do that or found that she could do that to an extent such that the tribunal did not consider that there was a well-founded fear of persecution.
The jurisdictional error which is alleged is based on the Craig and Yusuf grounds, that is, Craig v South Australia (1995) 184 CLR 163 and Yusuf v Minister for Immigration and Multicultural Affairs (2001) 206 CLR 323. The irrelevant question or wrong question which it is said that the tribunal has not considered or failed to consider is whether a requirement to belong to or to be registered as belonging to the official church which then enabled practice in the unofficial church could amount to persecution. The question of the Catholic worship in China has been considered by the Federal Court in Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548, and if the substantive issue was to be decided a consideration of that case and how it might apply to the tribunal's decision would have to be made. Wang was decided after the tribunal's decision in this case in March 1999. However, I do not consider that I should embark upon any assessment of the question of whether or not there has been jurisdictional error.
I consider that there is an unexplained delay of four years and three months in the bringing of this application. The applicant gives no explanation why application was not made to the Federal Court within the 28‑day time limit that then applied in 1999. The argument that the applicant now seeks to agitate could have been put as part 8 of the Migration Act which then existed. Wang had not been decided but the argument was available. It may well have been that if the application had been made, the appeal process in this case might not have been finished by the time it was known that Wang was to be considered by the High Court. No explanation is given why an application was not made to the High Court.
The general reasons sought to be advanced of the situation of a person applying for a protection visa do not offer an explanation and they certainly do not offer an explanation in the absence of any specific evidence about the applicant's position. There is an unexplained delay of four years and three months. I consider that in this case, that alone is sufficient grounds for refusing the relief sought as a matter of discretion. The application is dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 16th September 2004
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