FEDERAL COURT OF AUSTRALIA

Fernando v Ruddock [2000] FCA 1151

PRACTICE AND PROCEDURE – representative proceedings – application for extension of time to file and serve notice of appeal – whether group members bound by dismissal of previous applications – whether any reasonable prospects of success of appeal.

Federal Court of Australia Act 1976 (Cth), ss 4, 33A, 33C, 33ZB, 33ZC.

Migration Act 1958 (Cth).

International Covenant on Civil and Political Rights.

Federal Court Rules O 20, r 2; O 52, r 15.

Migration Regulations (Amendment) 1997 (SR 184 of 1997).

Migration Regulations (Amendment) 1997 (SR 279 of 1997).

De Silva v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 502, cited.

Macabenta v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 202, cited.

Wasantha v Ruddock [1999] FCA 1158, cited.

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, cited.

Minogue v Human Rights & Equal Opportunity Commission (1999) 84 FCR 438, cited.

Minogue v Williams [2000] FCA 125, cited.

Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404, cited.

Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543, cited.

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, cited.

Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398, cited.

Zhang v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 384, cited.

Aronson and Dyer, Judicial Review of Administrative Action, 2^nd ed., 2000.

NAOMAL FERNANDO on behalf of 14 members of the Group, Gamini Wasantha [on behalf of all members of the Sri Lankan Humanitarian Entrants (Sub Class 435) Association] v PHILLIP RUDDOCK in his capacity as Minister for Immigration & Multicultural Affairs

A 24 of 2000

SACKVILLE, KATZ & KENNY JJ

17    AUGUST 2000

CANBERRA

THE COURT ORDERS THAT:

1.                  The application for an extension of time be dismissed.

2.                  The group members affected by the judgment (in addition to the applicant) are those persons set out in the schedule to the judgment.

3.                  The balance of the motion filed on behalf of the respondent on 6 April 2000 be stood over until a date to be advised.

4.                  Costs be reserved.

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

REASONS FOR JUDGMENT

THE COURT

THE PROCEEDINGS

1                     The applicant, as a representative party, has applied for an extension of time in which to file and serve a notice of appeal from an ex tempore judgment given by a judge of the Court (Finn J) on 18 August 1999: Wasantha v Ruddock [1999] FCA 1158.  The present application was filed on 4 April 2000, some seven months after the date for filing an appeal against the judgment had expired: Federal Court Rules (“FCR”), O 52 r 15(1)(a) (providing that the appeal must be filed and served within twenty-one days from the date the judgment was pronounced).  The application was brought pursuant to FCR, O 52 r 15(2), which permits the Court to extend time if the applicant establishes that there are “special reasons” for doing so.

2                     The respondent (“the Minister”) has applied for an order summarily dismissing the application for an extension of time.  The Minister has also sought an order that the applicant’s solicitor pay the costs of the application and the summary dismissal motion on an indemnity basis.

3                     Mr Ryan, who appeared on behalf of the applicant, and Mr Howe, who appeared on behalf of the Minister, agreed that the application for an extension of time and the summary dismissal application should be heard together.  At the conclusion of the hearing the Court announced that it proposed to dismiss the application for an extension of time and would provide reasons at a later date.  The solicitor for the applicant, Mr Bandarage, then applied for an adjournment of the Minister’s application for a costs order against him personally.  That application was not opposed and the costs application was accordingly stood over.

4                     What follows are the Court’s reasons for dismissing the application for an extension of time.

BACKGROUND

5                     In November 1997, Gamini Wasantha, as representative of “all members of the Sri Lankan Humanitarian Entrants (Subclass 435) Association”, filed an amended application under Part IVA of the Federal Court of Australia Act 1976 (Cth) (“the Wasantha proceedings”).  Mr Wasantha sought declarations that reg 7.1 of the Migration Regulations (Amendment) 1997 (Cth), SR No 184, 30 June 1997, and reg 10 and 12 of the Migration Regulations (Amendment) 1997 (Cth), SR No 279, 1 October 1997, were invalid insofar as they related to Sri Lanka.  The application also sought associated relief, including an injunction restraining the respondent in those proceedings (the Minister)  from implementing or otherwise giving effect to the impugned regulations.

6                     The regulations distinguished between temporary visa holders from Sri Lanka who had entered Australia prior to 1 November 1993 and those who had entered after that date.  Before the regulations were made, generally speaking, temporary visa holders from Sri Lanka were treated in the same fashion regardless of their date of arrival in Australia.  The regulations, in effect, required those who had arrived after 1 November 1993 to leave Australia by 31 July 1997, while those who had arrived earlier were eligible to apply for a new subclass of visa.

7                     The applicant in the Wasantha proceedings initially asserted that the regulations were void or liable to be set aside on six grounds. On 10 December 1998, the Minister filed a motion seeking orders dismissing the proceedings.  In his supporting affidavit, the Minister’s solicitor noted that the regulations had been upheld by the Full Court in De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502. 

8                     At the hearing before the trial Judge on 18 August 1999, the applicant abandoned four of the six grounds of challenge as unarguable, in view of the decisions of the Full Court in De Silva and Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202.  The applicant pressed only two grounds before the trial Judge.  These were the following:

“The making of the Regulations in requiring the Applicant to have entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa which had effect as if it were an entry permit amounts to a breach of the rules of natural justice as the Applicant had a legitimate expectation that the Respondent would have considered the on going civil war and situation of political unrest in Sri Lanka before extending the subclass 435 visa for only those who arrived in Australia prior to 1 November 1993.

The making of the Regulations in requiring the Applicant to have entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa as if it were an entry permit is contrary to the International Covenant on Civil and Political Rights to which Australia is a signatory.”

9                     Finn J granted the Minister’s motion and dismissed the proceedings.  His Honour considered that there was no basis for the applicant’s submission that the group members were entitled to be accorded procedural fairness “before the making of the regulations”.  In his view (at [7]):

“[the] regulations of the present type made under the Act’s general regulation-making power are so legislative in their subject matter and sufficiently general in their character... and are so policy driven in their formulation and purpose... that it would be unreasonable to conclude that Parliament had not, albeit impliedly, intended to exclude the common law right to procedural fairness from the exercise of the regulation-making power – even if it would otherwise have applied to it”.

His Honour referred to De Silva, at 509, where the Full Court had noted that the decision to introduce the 1 November 1993 cut-off date:

“was made after balancing considerations, related essentially to policy questions, that were relevant and reasonable in the circumstances, and to which the executive branch of government was entitled to have regard in the exercise of its regulation making power under the [Migration] Act.”

10                  Nor did his Honour consider that there was any foundation for the applicant’s challenge to the regulations on the basis that they infringed the requirements of the International Covenant on Civil and Political Rights.  His Honour pointed out (at [8]) that “the common law does not extend to invalidating regulations not disallowed by Parliament... because they are inconsistent with a treaty to which Australia happens to be a signatory.”

11                  The applicant did not lodge an appeal against this decision within the time prescribed by FCR, O 52 r 15.  He did, however, subsequently file an application for an extension of time in which to file and serve a notice of appeal.  The application was dated 16 September 1999, but was filed on 29 September 1999.

12                  On 8 October 1999 the application was listed before Gyles J.  After a brief adjournment counsel indicated to Gyles J that the application could not proceed, as the representative party (Mr Wasantha) could not be located and thus the solicitor had no instructions to proceed with the application.  Gyles J made the following orders:

“1.  As the Applicant did not pursue the application, the application be dismissed.

2.    The Applicant pay the Respondent’s Costs.”

The orders did not identify the group members affected by it.

13                  It should be noted that although it must have been clear to the solicitor for some time prior to 8 October 1999 that the applicant could not be located, no attempt was made to invoke s 33ZC(6) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”).  This subsection provides that if the representative party in a representative proceeding does not bring an appeal within the time provided for instituting appeals, another member of the represented group may, within a further twenty-one days, bring an appeal as representing the group members.  Once the solicitor representing Mr Wasantha became aware that he (Mr Wasantha) could not be located within the period prescribed by FCR, O 52 r 15(1) in order to give instructions for an appeal, the solicitor had a further twenty-one days in which to receive and implement instructions from another member of the represented group to institute the appeal.

14                  On 18 October 1999, the applicant’s solicitor filed a fresh application on behalf of Naomal Fernando, as representative of “certain former subclass 435 visa holders” (“the Fernando proceedings”).  It appears that the “certain former subclass 435 visa holders” were nineteen persons who had been group members in the Wasantha proceedings.

15                  On 10 December 1999, the Minister filed a notice of motion seeking dismissal of the Fernando proceedings pursuant to FCR, O 20 r 2(1).  In a subsequent affidavit, the solicitor for the Minister stated that the order was sought on the basis that the Fernando proceedings:

“sought to agitate grounds which [were] the same in substance as the grounds of the application in the former proceedings, and which application was dismissed by the Court by consent.”

On 6 March 2000, orders were made by consent dismissing the Fernando proceedings and ordering the applicant to pay the Minister’s costs of the proceedings.  The applicant (Mr Fernando) consented to the orders after a conference was held with counsel.

THE SECOND APPLICATION FOR AN EXTENSION OF TIME

16                  On 4 April 2000, a second application was filed seeking an extension of time in which to file and serve a notice of appeal against the judgment given by the trial judge on 18 August 1999.  This application was said to be brought by “Naomal Fernando on behalf of fourteen members of the Group, Gamini Wasantha [on behalf of all members of the Sri Lankan Humanitarian Entrants (Sub Class 435) Association]”.  The fourteen group members (including Mr Fernando) were also members of the group on whose behalf the Fernando proceedings were said to have been instituted.

17                  The application was not accompanied by a draft notice of appeal.  At the hearing, however, Mr Ryan handed up a draft notice of appeal that had been prepared in connection with the first application for an extension of time.  It identified the following grounds of appeal:

“1.       That His Honour erred in law in finding that the legislative and policy driven nature of the Regulations 184/1997 and 279/97 by intention operated to exclude the common law right to procedural fairness from the regulation making process.

2.                  His Honour erred in law by failing to find that the Migration Regulations making/amendment process, and specifically said process with respect to said Regulations, in so far as said process proposed to deny and/or modify the nature and/or rights under a permit and/or visa class, required of the Respondent that procedural fairness be extended to the Applicant.

3.                  His Honour erred in law in failing to find that the International Covenant on Civil and Political Rights required that procedural fairness be extended to the Applicant during said process –

(a)               by impacting (by Part III Article 13) on interpretation of ss 29, 31(3), and 41 and 504 and 505 [of the Migration Act] such that the Applicant was to be singularly informed of the proposed Regulations 184 and 279 and submission from the Applicant sought and taken.

(b)               by requiring, regardless of statutory interpretation, that the Applicant was to be singularly so informed and submission sought and taken.

18                  On 6 April 2000, the Minister filed a motion seeking orders summarily dismissing the application for an extension of time.  This motion was brought pursuant to FCR, O 20 r 2, which permits a “proceeding” (defined in s 4 of the Federal Court Act to include an appeal) to be dismissed if it is frivolous or vexatious or an abuse of the process of the Court.  The Minister also sought orders that the applicant’s solicitor personally pay the Minister’s costs of the application and the motion on an indemnity basis.  On 7 April 2000, a judge of the Court ordered that the application and the respondent’s motion be heard together by the Full Court.

REASONING ON THE APPLICATION FOR AN EXTENSION OF TIME

arguable case

19                  The first argument advanced by Mr Ryan was that art 13 of the International Covenant on Civil and Political Rights (“ICCPR”) imposed an obligation on Australia to grant persons affected by the regulations an opportunity to be heard prior to their making.  Article 13 of the ICCPR reads as follows:

“An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”

20                  This argument depends on the untenable proposition that art 13 of the ICCPR is concerned with the making of laws determining who may lawfully remain in Australia, as distinct from the decision-making process for determining whether a person lawfully within the territory of a State Party should be expelled therefrom.  In any event, the argument encounters the insuperable difficulty that domestic legislation or subordinate legislation is not liable to be set aside by reason of inconsistency with a treaty which has not been enacted into law in Australia:  Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, at 286-287, per Mason CJ and Deane J; Minogue v Human Rights & Equal Opportunity Commission (1999) 84 FCR 438 (FC), at 447-448; Minogue v Williams [2000] FCA 125 (FC), at [21]-[25]; Hubner v ANZ Banking Group Ltd [2000] FCA 140 (FC), at [10-11].

21                  The second argument relied on by the applicant was that the Governor-General, in exercising the regulation making power under s 504 of the Migration Act 1958 (Cth), was obliged to accord each member of the group affected by the impugned regulations an opportunity to be heard prior to the making of the regulations.  In our view, there is no reasonable prospect of this argument succeeding.  It is true that, as Finn J acknowledged, the distinction between legislative and administrative decisions, for the purposes of the application of the rules of natural justice, has “progressively collapse[d]”: see Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404, at 415-416, per Gibbs CJ; at 432-433, per Mason and Wilson JJ; M Aronson and B Dyer, Judicial Review of Administrative Action (2nd ed 2000) at 337.  Nonetheless, the considerations identified by Finn J seem to us to suggest strongly that Parliament intended to exclude any duty that otherwise might have arisen to afford procedural fairness to persons adversely affected by the proposed regulations.  Mr Ryan conceded in argument that the applicant’s submission was inconsistent with established authority, but he gave no convincing reason for suggesting that the Court should depart from that line of authority.

22                  It follows that the applicant has not shown that any appeal would have any real chance of success.  This is enough of itself to justify refusing the application for extension of time.  We should briefly refer, however, to other considerations advanced by Mr Howe as reasons for refusing the application for an extension of time in which to appeal from the judgment of Finn J.

other considerations

23                  Mr Howe relied on the orders made by Gyles J dismissing the first application for an extension of time.  He contended that the orders bound the present applicant and group members since they were also members of the represented group in the application that had been determined by Gyles J.

24                  The orders made by Gyles J dismissing the application were an exercise of the appellate jurisdiction of the Court: Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543.  In the ordinary course, as Wati itself demonstrates, any further appeal within the Court from the order dismissing the application would be incompetent.  Subject to the operation of Part IVA of the Federal Court Act, it is not clear how a Full Court can entertain a second application for an extension of time without the order dismissing the first application being set aside: see Wati, at 549-552.  No application has been made in the present proceedings to set aside the orders made by Gyles J: cf Wati, at 552.

25                  Some questions may arise as to the effect of the orders made by Gyles J in view of s 33ZB of the Federal Court Act.  Section 33ZB provides as follows:

“A judgment given in a representative proceeding:

(a)               must describe or otherwise identify the group members who will be affected by it; and

(b)               binds all such persons other than any person who has opted out of the proceeding under section 33J.”

26                  It is by no means clear whether an application for an extension of time to appeal against the dismissal of representative proceedings can itself be classified as a “representative proceeding” for the purposes of s 33ZB of the Federal Court Act.  The expression “representative proceeding” is defined in s 33A to mean a proceeding commenced under s 33C of the Federal Court Act.  Clearly enough, an application for an extension of time in which to appeal from a judgment dismissing a representative proceeding is not within that definition.  The term “proceeding”, however, is defined to include an “incidental proceeding …in connexion with a proceeding”: Federal Court Act, s 4.  See also the definition of “judgment” in s 4.  It is perhaps arguable that the extended definition of “proceeding” produces the result that an application for an extension of time for an appeal is itself a representative proceeding.

27                  If the application for an extension of time is a representative proceeding, a procedural question arises.  Section 33ZB(a) of the Federal Court Act requires a judgment given in a representative proceeding to describe, or otherwise identify, all group members who will be affected by it.  The orders made by Gyles J did not satisfy this requirement, perhaps because the application was not seen as a representative proceeding.  It is not clear whether the absence of a description or identification of the group members in accordance with s 33ZB(a) deprives orders made in a representative proceeding of the binding effect they would otherwise have pursuant to s 33ZB(b).

28                  In view of the conclusions we have reached it is not necessary to resolve any of these questions in the present application.  In any event, whether or not the orders made by Gyles J bind the present applicant and group members, the fact that his Honour dismissed the proceedings, provides a powerful discretionary reason to refuse an extension of time in which to appeal.  The dismissal of the first application may have been attributable, at least in part, to a failure by the then applicant’s legal advisers to take advantage of the provisions of s 33ZC(6) of the Federal Court Act.  Nonetheless, the application was dismissed and no application has ever been made to set the order aside.

29                  Mr Howe also relied on the fact that the Fernando proceedings had been dismissed by consent, apparently after counsel had given advice in conference.  The represented group in those proceedings included all fourteen members of the group (including Mr Fernando) said to be represented in the current application for an extension of time.  Moreover, as Mr Howe pointed out, the issues raised in those proceedings were in substance the same as those canvassed before Finn J and which the applicant now seeks to agitate on the appeal, should leave be granted.

30                  Mr Howe submitted that the consent orders in the Fernando proceedings bound all members of the represented class in those proceedings and therefore bind the group members in the present proceedings: see Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, at 508;  Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398, at 423-424, per Toohey and Gaudron JJ; Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384, at 402-405, per French J.  This contention may well be correct.

31                  Once again it is not necessary to determine whether the present applicant and group members are bound by the orders made in the Fernando proceedings.  The fact that the parties to the present application were parties to the earlier proceedings is a formidable obstacle to any exercise of discretion in their favour.  Mr Ryan submitted that the dismissal of the Fernando proceedings could be explained on the basis that the legal representatives had instituted them without appreciating the significance of the orders made by Gyles J.  It must be said, however, that there was no evidence establishing that this was the reason for the consent orders being made.  Nor does the evidence suggest that anything was put to Finn J at the time indicating that this was the reason or that the represented parties wished to resurrect the application for an extension of time in which to appeal from the judgment of Finn J.

32                  The fourth matter relied on by Mr Howe was that the present application for an extension of time was not lodged until 4 April 2000, nearly seven months out of time (slightly less if s 33ZC(6) of the Federal Court Act is taken into account).  This, too, is a factor strongly militating against an extension of time.  It is important that migration cases be resolved expeditiously.  This is especially so where the proceedings are brought on behalf of a class of persons. If the proceedings are unduly prolonged they may become a vehicle for extending the stay in Australia of persons who have no lawful entitlement to remain in this country beyond the determination of the proceedings themselves.

CONCLUSION

33                  For the reasons we have given, the applicant should not be granted an extension of time in which to appeal from the judgment of Finn J.  The appropriate order is that the application be dismissed.  As we have explained, it is by no means clear whether an order dismissing the application for an extension of time is a “judgment given in a representative proceeding” for the purposes of s 33ZB of the Federal Court Act.  Without resolving that question, we have attached to this judgment a list of the group members who may be affected by the orders.

34                  We shall reserve the question of costs until the balance of the Minister’s motion is dealt with.

Associate:

Dated:              17 August 2000

SCHEDULE

1.      Abdul Latiff Ahmed Zaharan.

2.      Paththini Kankanange Champika Nilanthi De Silva.

3.      Amarasinghe Arachchige Pali Renuka.

4.      Danangoda Gamage Pradeep Roshan.

5.      De Silva Ambrosu Kankanamlage Duminda.

6.      Galuge Krishan Naomal Fernando.

7.      Ganhewage Chandrasiri Jayawardana.

8.      Herath Mudiyanselage Waruna Nalin Bandara Herath.

9.      Jayasinghe Kulasiri Obeyasena.

10.  Kumarage Waruna Rajeewa.

11.  Mailyadewa Wipul Pradeep Dharmasena.

12.  Mohamed Cassim Abdul Rahuman.

13.  Panapage Laksiri Chandraratre Fernando

14.  Ratnayake Mudiyanselage Mangala Weerasinghe.