Case: Applicants M16 of 2004 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1641
Outcome: followed
Counsel for the Minister argued that, at least as to part of the relief claimed, the application was out of time under the High Court Rules 1952 ('the High Court rules') and, unless the Court extended the time, that relief could not be granted. As I have said, the relief sought against the Minister is prohibition. The High Court Rules contained no time limit in respect of an application for prohibition. Counsel for the Minister contended that it was inappropriate to seek prohibition against the Minister; once the Tribunal decision has been made, if it is not set aside, the Minister has a statutory obligation to remove the applicant from Australia. While this argument may be correct, it is of no consequence in the present case. It is conceded that, as against the Tribunal, the remedy of certiorari was sought by the filing of the application in the High Court within the time limit then fixed by O 55 r 17(1) of the High Court Rules. The application to the High Court was not filed within the two-month time limit, fixed by O 55 r 30 of the High Court Rules, in respect of an application for mandamus. In Applicants M16 of 2004 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1641 at [73] , after examining some of the authorities, I expressed the conclusion that the better view is that, once the High Court has remitted an application for an order nisi to this Court, the time limits applicable in that court are no longer of any consequence. I remain of that opinion. 22 In any event, there was an amended draft order nisi filed in this Court. Although the use of an amended draft order nisi was perhaps not the most convenient procedure, it was of itself sufficient to invoke the jurisdiction of this Court, conferred by s 39B of the Judiciary Act , afresh. On the assumption that the Tribunal's decision is affected by jurisdictional error, and is consequently not 'a decision...made...under this Act' for the purposes of the definition of 'privative clause decision' in s 474(2) of the Migration Act , the time limit then fixed by s 477(1) was inapplicable. On that assumption, there was no time limit fixed for invoking the jurisdiction conferred on this Court by s 39B of the Judiciary Act , in respect of the Tribunal's decision. See Applicants M16 at [74]. 23 If it were necessary to enlarge the time limit for the application for mandamus, to give the applicant a constitutional entitlement to seek certiorari as an adjunct to mandamus (certiorari being a remedy not mentioned in s 75(v) of the Constitution ), then I should not hesitate to do so in the present case. There has been no undue delay. The proceeding was commenced within the time limited for an application for certiorari. The delay is not, in any event, gross. The Minister has not claimed to have suffered any prejudice by reason of the delay. The applicant's claim is one that has merits. 24 An alternative view is that certiorari might be a remedy available to the applicant, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), in a proceeding in which the jurisdiction of the Court is invoked validly by the remittal by the High Court of the application for prohibition against the Minister, even if the applicant could not succeed in obtaining that remedy against that respondent. 25 For all these reasons, it is unnecessary to consider the issue of the time of the commencement of the proceeding any further. 26 The applicant's case included a number of facts which, if accepted, distinguished him from most, if not all, of the people dealt with by the Egyptian authorities as a result of the activities at the nightclub. At the time of the events, the applicant was not a teenager, but was in his mid-twenties. He was not merely attending the events at which what were regarded as satanic rituals were taking place, but was facilitating those events, by making videotapes, and ensuring that the memory of the events was kept alive, by selling the videotapes to the participants. It was perhaps true to say, as the Tribunal did, that he was not an 'organiser' of the events, but he was certainly not in the same category as the ordinary participants.