Case: S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283
Outcome: applied
In his reasons at [19] and following, the Federal Magistrate set out the submissions made on the appellant's behalf concerning why the Tribunal had fallen into jurisdictional error. The same submissions are made in this appeal and will be referred to shortly. The Federal Magistrate identified the principles to be applied when exercising the discretion as follows (at [26] and [27]): "The Court has a discretion to dismiss an application for a constitutional writ in cases where there has been unwarrantable delay. This discretion can be exercised against an applicant without determining whether there has been any jurisdictional error (see R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565; Naguit &amp; Anor v Minister for Immigration [2005] FMCA 930 ; S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283). Unwarrantable delay justifies the withholding of relief (see The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400). A delay of more than a year should ordinarily lead to relief being refused in the exercise of the Court's discretion (see RE Commonwealth of Australia: Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 per McHugh J at 495-6)." 12 Immediately after these passages, the Federal Magistrate discussed the appellants' delay in bringing the proceedings and various authorities in which delay had been considered as a basis for refusing relief. At no point in his reasons did the Federal Magistrate assess whether the ground sought to be raised by the appellants was arguable. In the passage set out above, his Honour referred to the Full Court judgment of this Court in S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283. In that matter, the Full Court said (at [12] and [13]): "Mr Silva, who appeared as solicitor for the appellant on the hearing of the appeal also contended that the learned primary Judge had erred in exercising the discretion without reaching a final conclusion on the substantive merits of the case for the grant of a protection visa. He referred in support of this argument to these observations of Heerey J in VQAN v Minister for Immigration and Multicultural and Ethnic Affairs [2003] FCA 1541 (19 December 2003); '21 Goldberg J [in M162 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1146] did not proceed on the basis that delay could be the sole consideration in exercising the discretion to refuse relief. His Honour in fact considered the merits of the proposed application at some length: see [24]-[34]. 22 I conclude therefore that it would not be a proper exercise of discretion to completely ignore the applicant's prospects of success. This was not in fact done in the cases relied upon by counsel for the Minister. Moreover, his argument seems to be, practically speaking, inconsistent with the course adopted by the Full Court in Ngu . 23 If, as I therefore hold, the substantive merits must be considered, two approaches are possible. The substantive arguability might be considered as part of a balancing exercise, so that the longer the delay without reasonable explanation, the stronger would need to be the argument on the substantive merits. Alternatively, the court should proceed to reach a final conclusion one way or the other on the substantive merits and, if satisfied that a case of jurisdictional error is made out, then consider whether relief should be refused because of delay or other discretionary factors. This question was not argued. It is not necessary to express a conclusion because in the view I take the same ultimate result would be reached whichever approach were adopted. I would express a tentative preference for the latter, which seems more consistent with the reasoning of Gaudron and Gummow JJ in Aala at [54] et seq.' However, we do not understand Heerey J in that passage to have done more than express a preference for one of two judicial approaches. He clearly did not go so far as to say that it was legally impermissible to reach only a provisional view about the applicant's prospects of success on the substantive merits and then take that provisional view into account in exercising the discretion. Moreover, the learned primary Judge in the present case was precluded from reaching a concluded view on the substantive merits because the circumstances which the appellant claimed constituted the denial of procedural fairness discussed below meant that matters which might have tended in favour of acceptance of the appellant's case were not before the Tribunal or the Court. It is clear that his Honour evaluated separately from the exercise of the discretion to extend time the appellant's claim that the Tribunal denied him procedural fairness." 15 One of the cases cited by his Honour in support of the proposition that he was not required in the circumstances to determine whether there was jurisdictional error was R v Australian Broadcasting Tribunal; ex parte Fowler (1980) 31 ALR 565 (" Fowler "). In that case, the High Court ordered that an application for constitutional writs be dismissed because of the unwarrantable delay in commencing the proceedings. The Court expressly did so (at 570) "whether or not the prosecutors would otherwise have been entitled to relief, a question on which it [was] unnecessary to express any views". The approach of the High Court does not sit entirely comfortably with the reasoning of the Full Court in S58 . However, I doubt that the High Court was intending, by this judgment, to establish a principle that it was unnecessary for a court to consider the strength of the applicant's case when dismissing an application for constitutional writs because of unwarrantable delay. Later High Court authority is clear on the link between delay as a consideration in the exercise of a discretionary power which might preclude a party from litigating a case, and the strength of that party's case: see for example Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 at 480.