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MIGRATION - IRT decision made in 1997 - Class 816 visa - judicial review first sought in 2003 - jurisdictional error conceded - whether relief should be refused for unwarranted delay - applicant joined class actions challenging other visa decisions.

Ali v Minister for Immigration [2004] FMCA 674 (10 October 2004)

Ali v Minister for Immigration [2004] FMCA 674 (10 October 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION
[2004] FMCA 674



MIGRATION - IRT decision made in 1997 - Class 816 visa - judicial review first sought in 2003 - jurisdictional error conceded - whether relief should be refused for unwarranted delay - applicant joined class actions challenging other visa decisions.



Federal Magistrates Court Rules 2001, Part 21 r 2(2)(a)

Judiciary Act 1903 (Cth), s.39B

Migration (1993) Regulations (Amendment) 1994 (Cth)

Migration Act 1958 (Cth), ss.351, 483A, 478(2), Part 8

Racial Discrimination Act 1975 (Cth), s.10

Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132

Din v Minister for Immigration & Multicultural Affairs (No 2) [1998] 961 FCA

Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673

Macabenta v Minister for Immigration [1998] 1643 FCA, 90 FCR 202

Macabenta v Minister for Immigration [1998] 385 FCA

Muin v Refugee Review Tribunal [2002] HCA 30

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439

R v Australian Broadcasting Tribunal; ex parte Fowler and Ors (1980) 31 ALR 565

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185

Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57

Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82

Applicant:
ALI MOHAMMED



First Respondent:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:
MIGRATION REVIEW TRIBUNAL



File No:
SZ 1089 of 2003



Delivered on:


10 October 2004



Delivered at:


Sydney



Hearing dates:


9 & 30 September 2004



Judgment of:


Smith FM



REPRESENTATION

Counsel for the Applicant:


Applicant in person (9 September 2004)

Mr L Karp (30 September 2004)



Solicitors for the Applicant:


Parish Patience Immigration

(until 1 September 2004)

Simon Jeans & Associates

(from 22 September 2004)



Counsel for the Respondent:


Mr G T Johnson



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed.

(2) The Applicant to pay the First Respondent's costs in the sum of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1089 of 2003

ALI MOHAMMED


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




First Respondent

MIGRATION REVIEW TRIBUNAL




Second Respondent


REASONS FOR JUDGMENT
Introduction

1. This is an application filed on 17 June 2003 under the court's jurisdiction conferred by s 483A of the Migration Act 1958 (Cth), which gives the court "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". The application seeks to set aside a decision made on 28 May 1997, more than six years earlier, by the Immigration Review Tribunal, a tribunal which has long been abolished. It also seeks an order that his appeal to the IRT should be reconsidered by the present Migration Review Tribunal. The IRT decision affirmed a decision taken on 7 September 1995 which refused the applicant's application for a Class 816 Entry Permit made on

20 May 1994. This was a special "one-off" class of on-shore visa which is no longer found in the Migration regulations.

2. The judicial review regime for migration decisions which applied at the time of the IRT's decision imposed a strict 28 day time limit on applications for review by the Federal Court by reason of then s.478(2). That limit was accepted to be valid at the time, and was applied to out-of-time applications by people asserting the same error as is now asserted by the applicant (see Din v Minister for Immigration & Multicultural Affairs (No 2) [1998] 961 FCA (Wilcox J, 14 August 1998). However, the enactment of the present Part 8 of the Migration Act and its interpretation by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 means that no time limit now prevents the applicant bringing his present application by reference to s 39B of the Judiciary Act 1903 (Cth), provided that he can establish that the IRT decision was not a "privative clause decision" because it was vitiated by jurisdictional error. His counsel accepts, however, that relief may be refused if there has been "unwarranted delay".

3. Counsel for the respondent before me conceded that the error relied upon by the applicant occurred due to a procedural irregularity affecting English language tests conducted during 1995 for the purposes of applications for the Class 816 Entry Permit in question. He also conceded that it amounted to a "jurisdictional error" within Plaintiff S157. I have accepted both concessions, albeit with some hesitation in relation to the second. However, the respondent points out that the same irregularity was identified by Wilcox J in a "class action" brought by the applicant's own solicitors, Parish Patience, which was decided on 19 August 1997 (see Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673 and Din (No 2) supra). The respondent submits that the court should exercise its discretion to refuse any relief by reason of the long delay which occurred before the applicant sought relief such as was given by Wilcox J to other applicants in 1998.

4. This contention by the respondent is a response which might appear obvious to lawyers, but it was first expressed in submissions filed in the court two days before the hearing. One week earlier, Parish Patience filed a notice of ceasing to act for the applicant. When the applicant appeared before me, he had the assistance only of a Bengali interpreter. I was most concerned to ensure that he had a full opportunity to explain the delay, and in particular to present evidence from the solicitor at Parish Patience who acted for him throughout a history of dealings with the Department of Immigration since 1994. However, the applicant declined to seek an adjournment, and gave oral evidence which had not been foreshadowed in any form. In the course of his evidence he produced some correspondence from Parish Patience which left considerable obscurity. At the request of the respondent, I adjourned the hearing and allowed both parties to present further evidence on affidavit. I advised the applicant that he should consider obtaining an affidavit from his former solicitor which might explain the delay.

5. Prior to the resumed hearing, the respondent filed an affidavit attaching some documents from the Department's file. The applicant engaged a new solicitor who instructed counsel to appear on his behalf, and filed three affidavits. One of them attached what was said to be "the Applicant's file from his former solicitors, Parish Patience...in so far as it relates to events prior to 2003", but which appears to me to be no more than copies of six documents which they gave to the Applicant while engaged by him and which he had already tendered in evidence. Another affidavit attached some documents purporting to show that the applicant had been a "represented party" in the Nancy Lie class action in the High Court between 1999 and 2003. I shall recount the content of these documents below. An affidavit was also sworn by the Applicant which put forward an explanation for his delay somewhat different from what he had said in his earlier oral evidence. I shall assess his evidence below after setting out the history revealed by the documentary evidence. Significantly, no additional evidence was lead from the Applicant's solicitor at Parish Patience. The solicitor had sworn an affidavit in support of the Application to this Court filed on 17 June 2003, but this did no more than annex the Tribunal's decision and recite the grounds for the application.

6. I have decided on the evidence before me that the delay which has occurred in bringing the present application was "unwarranted" and that it is "proper" for the court to refuse relief. Indeed, I was inclined to conclude that in the circumstances set out below the delay allowed the application to be characterised as an abuse of process, but the authorities discussed below do not raise such a test and I do not need to make this finding. Unfortunately, to explain these conclusions, I must set out a long and tortuous path which has been followed by the applicant under the guidance of legal advisers. I must also address the submissions and authorities which were put to me by his counsel.

The history of the matter

7. The applicant was born in Bangladesh in March 1958, and worked as a civilian chef for army officers in Dhaka and briefly for the Bangladeshi High Commissioner in Australia in 1992. He returned to Australia on a 1-year temporary visa on 15 January 1993. This was cancelled on

19 October 1993 for breach of a condition limiting him to working at the High Commission, and the applicant was taken into detention. While in detention he lodged an application for refugee status which was refused in a decision notified on 10 November 1993. This decision was taken on appeal and affirmed by the Refugee Review Tribunal in a decision made on 30 March 1994 after a hearing held on 23 March 1994. The Tribunal's decision was based on a finding that "Mr Ali's claim that two warrants have been issued for his arrest (is) lacking in credibility". There is no evidence that the applicant challenged this decision until 1999, when he was advised to join the "Nancy Lie" High Court class action in circumstances I shall narrate below.

8. On 24 February 1994, before the hearing in the RRT, Parish Patience applied for a work permit on his behalf on the basis of a foreshadowed application for a Class 816 entry permit. They lodged that application on 27 May 1994. In the covering letter, they noted that "the applicant does not meet the exemptions contained in Regulation 816.732(2) and accordingly (we) seek your advice as to the arrangements our client should undertake to sit for the English test of proficiency".

9. This was a reference to an essential requirement for the Class 816 entry permit: that the applicant "has the ability to communicate in English in a mix of social and work situations, demonstrated by evidence of the kind set out in" subclause (2) or (3). Subclause (2) listed various educational achievements which the regulations deemed to establish the subclause (1) requirement. For applicants lacking any of those achievements, subclause (3) prescribed "evidence that the applicant has successfully undertaken, at the first or second attempt, and at a time and place nominated by the Minister, a test of proficiency in English nominated by the Minister". This test was known as the STEP test.

10. The class 816 visa had just been introduced into the Migration Regulations by the Migration (1993) Regulations (Amendment) 1994 (Cth). Its effect is described by Lockhart J in Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439, which was an unsuccessful challenge to the validity of the evidence provision for establishing English proficiency. In the course of his reasons, Lockhart J refers to an announcement on 1 November 1993 by the Minister following the Tiananmen Square massacres that "the Federal Government had decided to provide a special "one-off" opportunity to certain persons, including nationals of the PRC, to obtain permanent residence in Australia". Four special classes of entry permits were introduced "By providing the opportunity for better qualified persons who seek asylum in Australia to obtain permanent residence here under the "Skills Category" of the Migration Program, the Federal Government intended to reduce the backlog and time taken to consider their applications for refugee status. Successful applicants for a class 816 Entry Permit are therefore invited to withdraw their applications for refugee status. Unsuccessful applicants are able to proceed with those applications." Under legislative reforms which took effect in September 1994, applications for these entry permits were converted into applications for "class 816 Transitional (Permanent) Visas".

11. Lockhart J noted (55 FCR at 443) that "The STEP tests were and are scheduled for November 1994, January, May and July 1995. The November and January tests are for those applicants attempting the test for the first time; the May and July tests are for those applicants who are unable to pass the STEP test at the first attempt, including those who are deemed to have failed the test because they did not attend the first test as scheduled. Of the 14,551 principal applicants for class 816 Entry Permits, 9,019 have been identified by the Department as required to undertaken the STEP test. In the first week of November, 7,126 persons were scheduled to sit the test with the remainder scheduled to sit the test in January 1995. Of the 7,126 persons scheduled to sit the test in November, 6,629 (93 per cent) persons actually sat the test."

12. In the applicant's case, he failed to attend the first STEP test for which he was registered in November 1994, and in two attempts in January and August 1995 he failed all three components of "listening", "reading" and "writing". As a consequence, he was informed on

7 September 1995 that his application was refused.

13. On 27 September 1995, Parish Patience lodged an application for review of the decision with the Migration Internal Review Office (MIRO). On 8 November 1995, he was told that this was unsuccessful, due to his failure at the two STEP tests.

14. On 6 December 1995, Parish Patience appealed on his behalf to the Immigration Review Tribunal on the basis that "the English language test administered to Mr Ali may not have been authorised by cl 816.732 of the 1993 Regulations in that it was not apt to properly test the applicant's ability to communicate in English in a mix of social and work situations." Somewhat inevitably, this contention was not accepted by the IRT, and it affirmed the refusal of the visa in a decision sent on 28 May 1997. This is the decision under challenge in the present proceedings before me.

15. The applicant had been accompanied by a solicitor from Parish Patience at the IRT hearing on 18 March 1997, and it would seem that the likelihood of an adverse conclusion was well understood. On 19 March 1997 his solicitor sent him a letter saying:

I refer to the hearing in your matter before the IRT on 18 March 1997. As you are aware the Tribunal was clearly of the view that you could not be granted the 816 visa because of your failure to pass the English test. You can expect the Tribunal to refuse the appeal shortly. As explained we have initiated Federal Court proceedings to challenge the validity of the English test and would ask you to confirm with... the lawyer in my office who is handling these proceedings that you wish to be included in them. Please telephone him urgently.

16. On 23 May 1997, they wrote to him saying:

As we discussed with you when you came to our office, we have lodged a class action in the Federal Court concerning the English language test (step test), and we are inviting you to join in the case.

We have challenged the validity of the step test on the ground that it does not satisfy the legal requirement to test a person's ability to communicate in a mix of social and work situations. This may be an expensive and lengthy procedure, and we will need the support of as many people as possible.

Every person who joins our group will be included in the official Schedule of class members that will be filed in the Court. We will apply to the Department of Immigration for bridging visas and will make all necessary representations to the Minister.

If you wish to be a member of the group supporting this class action, we require you to make a contribution of $500.00 now, to be followed by a further contribution of $500.00 by 1 July 1997. By making the first payment you are instructing us to include your name in the list of people we are acting for in this matter.

17. It should be noted that this letter is dated before the IRT decision on

28 May 1997. The "STEP" class action had been commenced in the Federal Court on 25 February 1997, and was argued before Wilcox J on 17 July 1997. His Honour delivered the two "Din" judgments on

19 August 1997 and 14 August 1998 which I have cited above. In these proceedings Parish Patience represented 29 people. In his first judgment, Wilcox J held that the STEP tests were not validly conducted under cl 816.732 because the Minister had not personally nor through a delegate "nominated" the tests nor their "time and place", but had merely approved recommendations about these matters. In his second judgment, Wilcox J refused relief to some of the members of the class, inter alia, on the ground that a period of more than 28 days elapsed between the date of notification of the IRT decisions in their cases and the institution of the proceeding. In relation to 16 named persons, he set aside the IRT decisions and remitted their applications for further hearing. No argument seems to have been put to his Honour that this would be futile unless the Minister could be induced to nominate new tests and the IRT be induced to await their outcome.

18. At the first hearing before me, the applicant said that he had thought that he was a member of the class action which successfully challenged the STEP test, and that he believed that he was still "on the list" until he was informed otherwise in 1999. As well as the correspondence I have set out above, he tendered two Parish Patience trust account receipts dated 2 June 1997 and 17 July 1997 in the sums of $500, which he said he had paid to join the action. He also tendered a letter from Parish Patience sent to him dated 20 August 1997, which stated:

You will be pleased to hear that our appeal in the Federal Court against the validity of the English language test which you were required to sit has been successful.

We must now work out with the Department of Immigration how each person effected by the decision is to be further processed.

I will be overseas on business during the week beginning 25 August, so you should call my secretary and make an appointment to see me in the week beginning 1 September.

We are required to report back to the Federal Court by

11 September to let the Judge know what is happening with each individual applicant. It is therefore important that I am able to discuss your situation with you before then.

19. At the second hearing before me, the respondent produced from its files the letter from Parish Patience set out below which confirms what is apparent from the orders made by Wilcox J: that the applicant was in fact never a party to this action. The reasons for this are obscure in the absence of any evidence from the applicant's solicitor. Perhaps, it was because it was impossible to join him to the proceeding already commenced at the time of the applicant's IRT decision (28 May 1997). I infer that the solicitor decided, presumably on instructions, that no fresh application should be made to the Federal Court by the applicant, and that it was hoped that any success by the "class" could flow through to the applicant by way of an application to the Minister to exercise his personal discretion under s.351 of the Migration Act to "substitute a more favourable decision". This inference is supported by the letter sent by Parish Patience to the Minister on 7 April 1999, which stated:

We act for Mr Ali whose application for a Class 816 visa was refused by the IRT in May 1997 (N95/02998). Mr Ali failed two tests which were held to be invalid in the Fazal Din case. Unfortunately, the applicant was not one of the listed class action members when the case was finally decided by Justice Wilcox.

In the interests of justice we now ask that you allow Mr Ali to sit for the same further English test as the nominated class members in Din and subject to the results of the test we ask that you then consider exercising your power under Section 351 to grant him a permanent visa.

20. This request was refused by the Minister, who informed Parish Patience of this by letter dated 26 August 1999. From the applicant's evidence given at the first hearing before me, it might be inferred that it was this outcome, when brought to the applicant's attention, which caused him to become aware that he was no longer on a "list" of people benefiting from the outcome of the litigation challenging decisions refusing Class 816 visas. Notwithstanding this awareness, and however it came about, it is clear that he gave no instructions until June 2003 to commence a judicial review proceedings which would seek to apply Wilcox J's judgment to the IRT decision in question in the present case. As counsel for the respondent submitted, although this might not have been possible in the Federal Court after July 1997, at all times the High Court's Constitutional jurisdiction could have been invoked if an extension of time could have been obtained as required by the High Court rules.

21. Instead of commencing judicial review proceedings to keep alive his Class 816 application, Parish Patience suggested to the applicant that he should follow a different path to obtaining permanent residency which had opened up following an announcement by the Minister on 13 June 1997 of further "one-off" visa classes. These were class 850 and 851 visas, which allowed on-shore applications by persons from Sri Lanka, countries in the former Yugoslavia region, Iraq, Kuwait, Lebanon and the PRC. Although plainly the applicant could not meet these nationality criteria, he and 689 other people were encouraged to apply for the visa and then challenge their refusal in a class action in the Federal Court conducted by Parish Patience. The action carried the name Macabenta v Minister for Immigration and was apparently commenced in late 1997. It was argued before Tamberlin J on

19 March 1998, when the applicants submitted that persons of other nationalities should be entitled to qualify for the visas by invoking the operation of s.10 of the Racial Discrimination Act 1975 (Cth). The action was dismissed on 21 April 1998 (see [1998] 385 FCA). An appeal was argued before the Full Court on 4 November 1998 and dismissed on 18 December 1998 (see [1998] 1643 FCA, 90 FCR 202). An application for special leave to appeal to the High Court was refused on 18 June 1999.

22. The applicant made no mention of his involvement in the Macabenta proceedings in his evidence given at the first hearing before me. However, during the adjournment, the respondent located in her files an application for a bridging visa which was made on his behalf by Parish Patience by letter dated 22 April 1999. This sought a bridging visa "under new rules that came into effect on July 1998" on the ground that the applicant was a "member of the class represented by the Federal Court cases challenging the validity of the "ROSCO" program (Macabenta and Kagi)." A decision to grant this bridging visa was given, and the applicant enjoyed its benefits until June 1999 when the Macabenta litigation was concluded.

23. After being served with this material, the applicant filed an affidavit which deposes that he believed he was a member of the "ROSCO" class action for two years before 1999, and he attached a newsletter from Parish Patience which gave general advice to "all group members" about their options following the High Court's refusal of special leave. He said that he was then advised by his solicitor at Parish Patience that "you should join another class action, run by a solicitor named Adrian Joel". He gave the following account of the subsequent years:

6) I joined Mr Joel's class action. This was a refugee case, although I cannot remember the name of the case. Nor do I remember when I joined. I believed that I had a bridging visa based on the success of the "Roscoe" class action, and that my application for an 816 visa had to be determined again. I did not receive any advice that this was not so.

7) When I was in Mr Joel's class action I went to Mr Bitel's office [at Parish Patience] every month or two. Some times I saw him, sometimes I did not. I remember that Mr Bitel did not take notes during our meetings. The only advice he used to give me was to the effect, "Bring me your English results with level 3 passes, and you can get residency."

8) When the class action was won in the Court a solicitor named, "Mark" in the office of Adrian Joel said to me, "The point on which the case was won was not one on which you can win your own case" or words to that effect. This, as best I can remember was in the middle of 2003.

9) I then went to a Bangladeshi Migration Agent named Mr Haque. He prepared an application which I believe was filed on my behalf in the Federal Magistrates Court.

10) I also went to see Mr Bitel around the middle of 2003. He advised me to make the current application.

24. At the resumed hearing the applicant tendered a document headed "Schedule of Represented Parties" relating to Lie v Refugee Review Tribunal & Ors High Court of Australia No S89 of 1999, signed by Adrian Joel & Co and dated 24 September 1999. This identified the applicant as a "represented party" in relation to his Refugee Review Tribunal decision dated 30 March 1994. I was invited to assume that this document had in fact been filed and that the applicant had been included by orders of the High Court in those proceedings. He also tendered documents suggesting that in 2000 he had been given a further bridging visa allowing him lawful residence until "28 days after the LIE class action decision", and that this had come to a conclusion on 18 July 2003. There was no evidence before me as to the nature, progress or outcome of the alleged subsequent action filed in this court by Mr Haque.

25. The "Lie" class action, gave rise to the decision of the High Court in relation to Nancy Lie which is included in the report of Muin v Refugee Review Tribunal [2002] HCA 30. Accepting that the applicant was, indeed, a "represented party" in those proceedings, the matters which might have been litigated on his behalf could not have extended beyond the decision of the RRT on his 1993 refugee application. As with the "Macabenta" class action, pursuit of this litigation in no sense involved a challenge to the IRT decision concerning his 1994 application for a class 816 visa.

Assessment of the delay

26. There are many unsatisfactory aspects in the account given by the applicant in his affidavit, including that it does not explain why in his oral evidence and written statement read to the first hearing he made no mention of his involvement in the Macabenta and Lie class actions, but sought to explain his delay on the basis that he mistakenly thought until 1999 that he was "on the list" for the STEP test class action. However, the inconsistencies were not pursued by cross examination, and his claim that between 1997 and 2003 he was involved in litigation challenging decisions on visa applications other than his class 816 visa was not challenged by counsel for the respondent. Instead, counsel for the respondent submitted that it could be held that, on the applicant's own evidence, he was aware by at least the end of 1999 that he was not, and had never been, involved in any court proceeding which challenged the IRT decision on his class 816 visa, and that he thereafter consciously "sat on his hands" for more than 3 years before giving instructions for this to happen.

27. I accept counsel's submission. Attempting to reconcile all the evidence given by the applicant with the documentary material in evidence before me, I hold that at the very latest by the beginning of 2000 the applicant must have been well aware that his lawyers did not have any litigation on foot which could produce a rehearing by the Migration Review Tribunal of his application for a class 816 visa. Further, it is clear from the above narrative, and I hold, that the efforts of his lawyers by way of judicial review proceedings were, on his instructions, between 1997 and 2003 directed at challenging immigration decisions taken on completely different visa applications.

28. Counsel for the Minister submitted that in these circumstances the applicant was "guilty of unwarrantable delay" at the time of the commencement of the present proceedings so as to "make it just" that relief by way of mandamus should be withheld (c.f. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400; see also R v Australian Broadcasting Tribunal; ex parte Fowler and Ors (1980) 31 ALR 565 at 570), and that the delay also made it "the proper approach" to refuse relief by way of prohibition and certiorari (c.f. Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 133, adopted by Gaudron and Gummow JJ in Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [51-3] with whom Gleeson CJ and Hayne J agreed, and by Kirby J at [148-9])

29. Counsel referred to the important consideration concerning delay in challenging administrative decisions identified by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-6: "Where an applicant seeks the issue of 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." (applied in Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132).

30. I accept these submissions. I consider that the "one-off" nature of the class 816 visa as described above made it particularly important that challenges to decision-making should be brought and pursued without delay. As is clear, many such challenges were brought, and the applicant was aware of them at the time but failed to join them or seek their benefits in a timely manner. Moreover he chose to pursue other immigration avenues and his judicial review litigation was directed at those avenues. Although counsel for the Minister did not submit that if the matter were now remitted to the Migration Review Tribunal it would be impossible for the applicant to succeed, it appears to me that for this to happen it would require the Minister to be induced to set up a special STEP testing procedure for the applicant nearly a decade after most other applicants for this visa were tested. This point illustrates the point made by McHugh J, and its relevance to the present case.

31. Giving the applicant every allowance for his lack of English and foreign nationality, I consider that the proper administration of justice in this Court clearly demands that his application should be refused, notwithstanding that jurisdictional error has been conceded. I consider that he has provided no acceptable justification for his delay, but, indeed, that his attempted explanations have shown why it is proper to refuse relief.

32. In reaching this conclusion I have given full weight to the judicial statements to which I was referred by counsel for the applicant. In particular, I was referred to Gaudron J's statement in Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57 at [106] that "Although relief by way of prohibition under s 75(v) of the Constitution is discretionary, the guiding principle is that "[t]hose exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers" (also McHugh J[152] and Kirby J at [215-222], and to Kirby J in Aala (supra) at [140]).

33. Counsel for the applicant submitted that the applicant had provided adequate explanations for the delay in challenging the IRT decision, since for the whole of that period he had been pursuing lawful administrative and legal procedures to obtain rights to stay in Australia, and it was immaterial that those procedures had been directed at rights to residence under different categories of visa. He sought to compare this explanation with the activities which the High Court found provided acceptable explanations in Miah (supra) for two and a half years' delay in commencing judicial review proceedings.

34. I do not accept this submission. In my view, there are significant points of distinction between the present case and Miah. In particular, the applicant in that case established that he had always actively sought to pursue rights to residence as a refugee. The actions of the present applicant are in clear contrast with this, since, in effect, the applicant abandoned the pursuit of a class 816 visa in favour of pursuing quite differently based rights of residence. I cannot be persuaded that it is in the interests of the proper administration of justice or of good public administration to allow an applicant to hold in suspense over many years an allegation that an Immigration Tribunal has invalidly decided an entitlement under a particular visa application, and then to seek to justify his delay in seeking judicial intervention by pointing to the unsuccessful pursuit of other visa applications.

35. For the above reasons I dismiss the application.

36. The parties thought it convenient to address me on costs before knowing my conclusions on their submissions. The respondent sought costs in the sum of $7,000 in the event that she succeeded, noting that the principal question litigated was the applicant's delay. The applicant submitted that no order for costs should be made if he lost, in recognition of the Minister's concession that the IRT decision was affected by jurisdictional error. I do not accept this submission, and consider that costs should follow the event in accordance with the normal rule, but with a reduction to $4,000 to take into account that the respondent raised the question of delay belatedly and so as to accord with the currently conventional amounts for an award of costs under Part 21 r 2(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 11 October 2004
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