FEDERAL COURT OF AUSTRALIA

WACF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 234

WACF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W 190 OF 2004

BLACK CJ, EMMETT and SELWAY JJ

9 AUGUST 2004

PERTH (VIA VIDEO LINK TO SYDNEY)

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be dismissed as incompetent.
2. Pursuant to Federal Court Rules O 52 r 18 there be no order as to costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

(Revised from the transcript)

THE COURT:

1                     The appellant arrived in Australia on 5 July 2001 and on 6 July applied for a protection visa.  To grant such a visa, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) had to be satisfied that the appellant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees, as amended by the Protocol relating to the Status of Refugees: see Migration Act 1958 (Cth) s 36(2).

2                     In general terms, the Minister had to be satisfied that the appellant was a refugee as defined in the Convention.  The appellant argued that he answered that definition because he had a well-founded fear of persecution by reason of his race and ethnicity.  He claimed to be a citizen of Afghanistan and a Shi’ite Muslim of Hazara ethnicity.  He claimed to fear persecution from the Taliban who were then in government in Afghanistan and persecuting Hazara people.

3                     The appellant’s claim was initially considered by a delegate of the Minister, who rejected the claim in September 2001.  The appellant then sought to have that decision reviewed by the Refugee Review Tribunal (“Tribunal”).  The Tribunal confirmed the decision of the delegate.

4                     On 11 December 2001, the appellant instituted proceedings in this Court seeking to review the decision of the Tribunal.  Those proceedings were remitted to the Federal Magistrates Court and, on 29 May 2002, they were dismissed in that Court: WACF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 108.

5                     On 4 July 2002, the appellant sought to appeal to this Court from the decision of the Federal Magistrates Court.  By an order made by French J on 11 October 2002, that appeal was discontinued by consent.  We note that the appellant could have filed a notice of discontinuance without the need for judicial order, pursuant to rule 19 of the Federal Court Rules, but it is clear that French J had the jurisdiction to make the order that he did: see Federal Court of Australia Act 1976 (Cth) s 25(2)(b). The order made by French J was sealed on 14 October 2002. 

6                     On 18 September 2003, the appellant filed an application for an extension of time in which to file and serve a notice of appeal.  It is clear that no order was sought for the purpose of attempting to set aside the order made by French J.  So much is conceded by Mr Jones, who appears for the appellant. On 28 November 2003, Carr J granted leave to the appellant to file and serve a notice of appeal from the decision of the Federal Magistrates Court given on 29 May 2002: see [2003] FCA 1385.  The notice of appeal filed pursuant to that order is the notice of appeal before us.

7                     The respondent has objected to the competency of the appeal and therefore the first question for decision is whether the purported notice is competent, given the order made by French J on 11 October 2002.  It is perhaps implicit in the order made by Carr J on 28 November 2003 that his Honour was of the view that a valid appeal could be reinstated in this case. Even if his Honour did reach that conclusion, however, it is still necessary for us to determine whether we have jurisdiction to hear the appeal now said to be before us. 

8                     It is implicit in the Federal Court of Australia Act and in the Federal Court Rules that a party can only bring one appeal in this Court from a particular judgment or decree in relation to which the Court has appellate jurisdiction.  Once such an appeal is finalised, no further appeal can be instituted by that party in relation to that judgment or decree.  Indeed, it has recently been so held by Branson J in El-Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 742.  Her Honour was plainly correct.

9                     In this case, the order made by French J was an order for discontinuance.  Such an order, when perfected, operated as an abandonment of the appeal: see Federal Court Rules O 52 r 19(1)(a).  For this purpose, an order is perfected when it is formally entered into the record of the Court: see Bailey v Marinoff (1971) 125 CLR 529 at 530.

10                  In proceedings in this Court, the order is relevantly entered when the seal of the court is affixed to it: see Federal Court Rules O 36.  Whether or not the order made by French J can be set aside is not to the point in the proceeding before us.  No application to reopen that order or set it aside has been made.  Rather, what is before us is a purported second appeal. 

11                  For the reasons we have given, there is no jurisdiction to hear that second appeal and accordingly the objection to competency must be upheld and the purported appeal dismissed.  

Associate:

Dated:              27 October 2004