FEDERAL COURT OF AUSTRALIA

Applicant M52 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 111

APPLICANT M52 of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V 64 of 2004

BLACK CJ, DOWSETT AND BENNETT JJ

MELBOURNE

6 MAY 2004

THE COURT ORDERS THAT:

1.             The application for an extension of time to apply for leave to appeal and the application for leave to appeal be refused, with costs.

2.             The appeal be dismissed as incompetent, with costs.

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

REASONS FOR JUDGMENT

(Revised from transcript)

THE COURT:

1                     This is an application for extension of time to file and serve a notice of appeal. It is also an application for leave to appeal, and a purported appeal against a decision of Heerey J dismissing the applicant’s application for orders nisi for prohibition and certiorari against the respondent Minister and against two members of the Refugee Review Tribunal (“the Tribunal”). 

2                     The applicant is a citizen of India who, in 1994, applied with his wife for protection visas on the ground that they fear persecution in India because of the applicant’s perceived support for Sikh extremists in the Punjab region.  The applicant’s application for a protection visa was refused by a delegate of the Minister on 21 November 1995.  The applicant sought a review of that decision by the Refugees Review Tribunal (‘Tribunal’), but that was dismissed.  The Tribunal found that there was only a ‘remote or insignificant chance that the applicant would suffer persecution on return to India due to his imputed political opinion or religion’: RRT Reference V95/03843 at 37.

3                     The applicant then sought judicial review of the Tribunal’s decision in this Court.  By consent, orders were made remitting the application for a protection visa to the Tribunal for reconsideration.  A differently constituted Tribunal affirmed the original decision, and the applicant again sought judicial review in this Court.  Again, by consent, orders were made remitting the matter to the Tribunal.  For a third time the Tribunal affirmed the decision not to grant a visa. It concluded on that occasion that ‘the applicant would not face a real chance of persecution in Punjab today’. 

4                     The applicant again sought judicial review of the Tribunal’s decision, but in December 2000, after a contested hearing in which the applicant was represented by a barrister, a judge of this court dismissed the application.  The applicant did not appeal from this judgment, but instead applied twice to the Minister seeking the exercise of his discretion under s 417 of the Migration Act 1958 (Cth) to give a more favourable decision.  Both of these requests were refused.  After the second request to the Minister was refused, the applicant applied to the High Court of Australia in May 2002 for orders nisi for prohibition and certiorari against the Minister’s decision to refuse his second request.

5                     A justice of the High Court granted leave to amend the proceedings so that, in effect, they became directed against the decision of the Tribunal of May 2000 which, however, was the decision of the Tribunal that had already been challenged unsuccessfully in this Court.  The amended application claimed a range of errors on the part of the Tribunal, but without sufficient particulars of what they actually were.  The High Court then remitted the case to this Court where it was heard by Heerey J, together with a similar application by the applicant’s wife.

6                     Heerey J dismissed the applications on the ground that the applicant and his wife did not have any satisfactory explanation for the long delay in seeking the orders nisi from the High Court. 

7                     Heerey J also held that even if the time for seeking the orders were extended, the principles of law discussed in Port of Melbourne Authority v Anshun (1981) 147 CLR 589 would have prevented the applicant from challenging the findings of the Tribunal since that challenge could have been made in the applicant’s earlier case before the Federal Court.

8                     Without going into detail, the principle, to which Heerey J refers, says, in essence, that you cannot go on bringing cases before the court about the same matter.  Put shortly, you can only have one case for one legal claim, and you cannot raise in a later matter, a ground that you could have raised in the original matter, because otherwise there would be no end to litigation in the courts.  It was for these reasons, therefore, that Heerey J dismissed the applications for orders nisi under various provisions of the Federal Court of Australia Act 1976 (Cth) and the Rules appropriate in such circumstances.

9                     Because the decision made by Heerey J was interlocutory in nature, leave to appeal from it was needed (NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297).  That leave had to be applied for promptly, in fact within seven days (s 24(1A) Federal Court of Australia Act 1976 (Cth), O 52 r 10(1)(b) Federal Court Rules).  This was not done. Instead, the applicant filed a notice of appeal at the end of January 2004. 

10                  The notice claimed jurisdictional error with the following particulars:

I disagree with the decision of His Honour in that he did not take or give proper consideration of the explanations that I gave with regard to the delays as to why we were late in lodging our applications. The Tribunal did not understand my case and it used documents I was never given a copy of so that I could comment. His Honour asked me what documents I was referring to and because I was nervous and had not done this before, I was not able to tell him about the documents. The judge should have given me the opportunity to go through my notes and try and find those documents.

11                  Essentially the applicant sought an order setting aside the decision of Heerey J. He wanted the case to go back to the Tribunal differently constituted for further consideration.

12                  At a directions hearing in February of this year, the Chief Justice ordered that the applicant should file and serve any application for leave to appeal and for extension of time no later than 27 February and this the applicant in fact did.  However, although the application for leave to appeal claimed a variety of grounds including, regrettably, an allegation that the decision of Heerey J was made in bad faith, such  particulars as were given did not provide any substance for any of those grounds.

13                  In exercising its discretion to dismiss a case, a Court will give significant weight to whether leave to appeal is likely to be granted, and in relation to an extension of time whether there is a satisfactory explanation for the delay: Deighton v Telstra Corporation Ltd (1997) 46 ALD 360.  In an affidavit dated 27 January 2004, the applicant sought to explain the delay by saying that he was not provided with a copy of Heerey J’s reasons until late December and believed that he then had another 21 days in which to appeal.  He claims that he tried to get some legal advice but all the lawyers were on leave as it was the Christmas vacation.

14                  We do not understand counsel for the Minister to have been particularly concerned about the delay, given the explanation, but he submitted that in any case the application should be refused because there was only at best an extremely low prospect of leave being granted.  He also submitted that because the Court was asked to review what amounted to a procedural decision by Heerey J to refuse to extend time, we should be especially cautious in allowing the matter to proceed: In Re the Will of F B Gilbert (dec) (1946) SR (NSW) 318, 323 (Jordan CJ); Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177.

15                  We agree that even if the applicant’s explanation for his delay were accepted and an extension of time for taking the procedural steps that need to be taken allowed, no leave to appeal should be granted in this case.  Although the applicant in his submissions before us today explained very clearly that he did not wish to go back to India and feared persecution if he did, and that he really did want the case sent back to the Tribunal to be considered again, it is not, as we sought to explain to him after he had made his submissions, the role of this court to review his case on the merits. 

16                  As we also sough to explain to the applicant, he has not put forward any material or submissions to suggest that the judge from whom he seeks to appeal was wrong as a matter of law, nor has he been able to point to any error in the way in which the judge exercised his discretion not to extend time to allow the challenge to the Tribunal’s decision to proceed.

17                  The grounds that the applicant put in his documents have apparently been taken from some precedent, but merely stating them does nothing to advance his case.  There is nothing to support them. 

18                  In these circumstances and for these reasons, the application for leave to extend the time for filing an application for leave to appeal, and the application for leave to appeal itself, must be refused with costs.  The appeal that the applicant sought to bring must be dismissed as incompetent, also with costs. 

Associate:

Dated:              11 May 2004