FEDERAL COURT OF AUSTRALIA

Applicant M237 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 61

APPLICANT M237 of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 830 of 2003

HEEREY, WHITLAM AND FINKELSTEIN JJ

MELBOURNE

27 FEBRUARY 2004

On Appeal from a Single Judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1.                  The appeal be dismissed as incompetent.

AND THE COURT DIRECTS THAT:

2.         The respondent make arrangements for relisting the matter before North J.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On Appeal from a Single Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

HEEREY J:

1                     I agree with the reasons given by Finkelstein J.

Associate:

Dated:              18 March 2004

On Appeal from a Single Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

WHITLAM J:

2                     I agree that the appeal is incompetent for the reasons given by Finkelstein J.  However, in my view, the respondent is entitled to the costs of his motion that the appeal be dismissed as incompetent. 

3                     The disposition of the residue of the proceeding remitted to the Court was a matter for the applicant.  The respondent bore no obligation to move for the dismissal generally of the proceeding which North J had characterised as ‘clearly hopeless’. 

4                     This appeal was instituted by the filing of a notice of appeal which indicated that grounds of appeal would be forthcoming when a certified copy was made available of the reasons for judgment delivered ex tempore by North J.  No such supplementary notice was ever filed, and no grounds of appeal were ever articulated.  The respondent was joined by the appellant as a party to the appeal, and in the circumstances he took the proper course in filing the notice of motion for an order that the appeal be dismissed as incompetent.  Costs should follow the event and be ordered against the appellant in favour of the respondent.  

Associate:

Dated:              18 March 2004

On Appeal from a Single Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

FINKELSTEIN J:

5                     The appellant is a Tamil-speaking Christian from Sri Lanka.  She claims to be a Convention refugee fearing persecution if she were required to return to Sri Lanka.  She fears persecution on account of her ethnicity and because of her status as a “single woman at risk”.  A delegate of the Minister was not satisfied that she was a Convention refugee and, accordingly, refused to grant her a protection visa.   This decision was affirmed by the Refugee Review Tribunal on 10 July 2000.  The appellant then applied to the Federal Court for review of the tribunal’s decision.  That application was heard by Marshall J and dismissed on 8 June 2001.  An appeal to the Full Court was dismissed on 6 December 2001.  Not deterred by those decisions, on 24 December 2001 the appellant applied to the High Court for writs of prohibition and certiorari to issue against the tribunal.  According to the High Court Rules an application for a writ of certiorari must be made within six months after the date of the impugned decision, (O 55 r 17 subr (1)), although the Court can enlarge that time under O 60 r 6(1).  Appreciating that she required an extension of time, in her affidavit in support the appellant sought such extension to “permit [her] to bring the present application for review”. 

6                     In due course the proceeding in the High Court was remitted to the Federal Court.  It came on for hearing before North J on 11 August 2003.  He made an order that “[t]he application for extension of time [be] dismissed.”  That order could only have affected the application for certiorari because no time limit is imposed for applications for writs of prohibition. 

7                     In the course of his reasons North J examined the basis upon which the appellant sought to challenge the decision of the tribunal.  He noted (and this appears to be uncontroversial) that the appellant sought to rely on essentially the same grounds that she had argued and lost before Marshall J and the Full Court.  Based on this analysis, North J refused the extension of time application for two reasons.  First, North J considered that the claim for relief was bound to fail on the merits, having already been dismissed by Marshall J and the Full Court.  The judge came to this conclusion irrespective of whether there was an explanation for the delay.  Secondly, while the decision of Marshall J (which had been affirmed by the Full Court) remained in place the appellant’s claim to have the tribunal’s decision set aside had passed into that judgment with the consequence that she no longer had any claim to pursue.  That is, the doctrines of res judicata and issue estoppel applied. 

8                     Presently, the appellant seeks to appeal “the whole of the judgment of North J”.  She appears in person.  The grounds of appeal allege errors of law on the part of the tribunal, but not the judge.  No particulars of those errors are given aside from them being described as “jurisdictional” and “procedural” in the sense that the tribunal failed to accord the appellant natural justice. 

9                     In this state of affairs two things are clear.  The first is that the order made by North J is interlocutory in nature and cannot be the subject of an appeal as of right.  The appellant was required to obtain leave before bringing her appeal.  She has not done so.  It follows that the appeal is incompetent.  The Minister asks for the appeal to be dismissed for that reason and I would make an order to that effect.  Even if I were to treat the appellant as having made an application for leave to appeal the decision of North J, I would refuse such application on the basis that an appeal would be hopeless. 

10                  The second thing is that the appellant’s application for prohibition remains on foot for the reason that it has not been disposed of.  Indeed, as the authorities currently stand, to successfully mount an attack against the tribunal’s decision the appellant does not need to obtain certiorari; a writ of prohibition will do.  This is not to suggest that I am of the view that there is merit in the application for prohibition.  That is simply not a matter which presently requires any attention.

11                  That leaves the question of costs.  Although I am of opinion that the Minister should obtain an order dismissing the appeal because it is incompetent, I will not award costs in the Minister’s favour.  This is because the Minister should have applied to have the application for prohibition dealt with at the same time as the writ of certiorari.  This could have avoided two first instance hearings and potentially two Full Court hearings. 

Associate:

Dated:              18 March 2004