Case: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 , 204 CLR 82
Outcome: cited
respect to the exercise of discretion, the reasons for decision of the Federal Magistrate were in part as follows: Delay [19] The first respondent submits that, regardless of whether jurisdictional error is demonstrated, the relief sought by the applicant should be denied in the exercise of the Court's discretion because he took unduly long to commence these proceedings. In this regard, it should be noted that the Tribunal's decision was sent to the applicant under cover of a letter dated 26 July 2001 and these proceedings were not commenced until 22 June 2007. In his evidence to the Court the applicant conceded that he had received the Tribunal's decision two to three months after the date which had been scheduled for the Tribunal's hearing (1 March 2001). The applicant also agreed that he had received the decision and its covering letter from the Tribunal. He said that he did read the covering letter but not fully, did not fully understand it and was upset and puzzled. He said that he did not discuss the letter with his agent even though the agent had rung him to say that he too had received a copy of the letter advising of the Tribunal's decision. The applicant said that he did not ask his agent what to do next in relation to his visa status. ... [24] It is clear that the Court does have a discretion to deny relief in circumstances where the conduct of the applicant is inconsistent with the application for relief, including where the applicant has been guilty of unwarrantable delay: SAAP v Minister for Immigration Multicultural &amp; Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009 per McHugh J at 1026 [80]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at 197 [28] . This is not a case where the applicant's delay in bringing proceedings is measured in months. It is a delay which is measured in years. The explanation advanced by the applicant for his delay in bringing the proceedings is not credible and I reject it. In his evidence the applicant said that it was through hard work and trying to find information and encouragement from a friend that he became aware of his right to appeal. No explanation was advanced as to why this process matured into an application to this Court only in 2007. Moreover, such evidence is not consistent with the applicant's knowledge that he was denied his hearing before the Tribunal. He knew that he had been invited to appear but had, in fact, been denied the opportunity of so doing. [25] Knowing that he had been denied his hearing and that his application to the Tribunal had been unsuccessful, the applicant should have made enquiries at an early date with a view to enforcing his rights and vindicating his claim to be a refugee. The fact that he did not do so requires an explanation more compelling than that he did not know that he had a right of appeal. [26] But in any event, I have found that he was aware as early as 2001 that if he wished the Tribunal's decision to be set aside he would need to seek judicial review in the Federal Court. He has put nothing before the Court to explain why he did not act on this knowledge. [27] The applicant having given no adequate explanation for the very considerable delay in bringing these proceedings, relief will be denied in the exercise of the Court's discretion. In support of the present Application for an extension of time, two Affidavits were filed. The first was sworn on 12 December 2008 and the second was sworn on 29 January 2009. The Affidavit upon which reliance was ultimately placed at the hearing was one sworn by the Applicant on 4 February 2009. The Respondent relied upon an Affidavit of the instructing solicitor sworn on 6 February 2009. Objection was taken to both Affidavits &#8212; but both were admitted subject to the objections taken as to relevance. At the outset of the hearing on 6 February 2009, the deficiency in the factual account as set forth in the February Affidavit was explored with Counsel for the Applicant &#8212; that deficiency being that it really set forth no explanation for the entirety of the delay as between January and December 2008. The opportunity was extended to the Applicant to adjourn the proceeding and to file further affidavit evidence and evidence in admissible form. The course ultimately embraced by Counsel for the Applicant, however, was to lead on that date further oral evidence from the Applicant. The Applicant was cross-examined. But for the Applicant's delay in invoking his rights, he would in all likelihood have obtained relief: R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185. Gibbs CJ there observed (at 194) in respect to relief in the nature of prohibition: If therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course. This has been accepted by Gaudron and Gummow JJ as " the correct approach to the exercise of the original jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth under s 75(v) of the Constitution ": Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [51] , 204 CLR 82 at 106.