Case: Daniel v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 21 ; (2004) 205 ALR 198
Outcome: considered
The present application is over two years outside the time provided for under O 52 r 15(1) of the Federal Court Rules . The Minister submitted that in light of the lateness of the application, an extension of time should be refused as the applicants elected to pursue Ministerial intervention under s 417 and chose to abandon their rights of appeal. The Minister relied on an observation of Goldberg J in Daniel v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 21 ; (2004) 205 ALR 198 at [14] : 'Over nine months elapsed between the order dismissing the application for review in the Federal Court and the filing of the application in the High Court. The High Court application was made prior to the handing down of the decision in Minister for Immigration &amp; Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. During that intervening period, on 14 July 2000 the letter had been written to the Minister requesting him to exercise his power under s 417 of the Act. The taking of that course of action by the applicant is indicative of a decision by him to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law. ... This course of conduct, in my view, should properly be characterised as an indication by the applicant that he was prepared to accept that the Tribunal's decision was correct and that he did not intend to challenge that decision further in the Court. A similar approach has been taken in a number of cases in this Court: Applicant A2 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 576 ; Re Batuwantudawa [2003] FCA 684 ; Opanayaka Mudiyanselage v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 823 ; Applicant M29 of 2001 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1266 ; Applicant VUAD of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1331 at [16] - [20] .' 17 I very much doubt that what his Honour said in this extract from his reasons was being put as a general statement of principle; more likely, a conclusion drawn from the facts of the case before his Honour. But if I am wrong, then, with respect, I cannot agree with it. The Minister submitted that a Full Federal Court approved Goldberg J's approach in M211 of 2003 v Refugee Review Tribunal &amp; Anor [2004] FCAFC 293 ; (2004) 212 ALR 520 at [16] [24] and cited other cases where this Court has held that a request under s 417 of the Act indicates acceptance of the Tribunal's decision and does not provide an adequate explanation for delay (at [11] of his submissions). Although the Full Court did not expressly endorse the observation cited above in Daniel , it concluded at [36]: 'Although the primary judge did not dismiss the application for prohibition on the ground of the appellant's lengthy delay in seeking constitutional writs, that, and the making of a s 417 application, reinforce the propriety of the proceeding having been brought to an end.'