FEDERAL COURT OF AUSTRALIA

Potier v Minister for Immigration and Multicultural Affairs [2001] FCA 1770

MIGRATION – construction of s 36(2) of the Migration Act 1958 – meaning of “[A] criterion for a protection visa” – whether use of indefinite article “[A]” allows for other criteria to operate

APPEAL – whether appeal lies to Full Court from single judge exercising power under O 52 r 15 of the Federal Court Rules refusing to grant extension of time in which to appeal

Migration Act 1958 (Cth) s 36

Federal Court of Australia Act 1976 (Cth) s 25(2)(b)

Federal Court Rules O 52 r 15(1)(a), r 15(2)

Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 applied

Hall v Anderson (unreported, Full Court, Federal Court of Australia, 18 July 1997) applied

MALCOLM HUNTLEY POTIER and SARAH FLORA OSWALD POTIER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N243 of 2001

WEINBERG, HELY and ALLSOP JJ

14 DECEMBER 2001

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed as incompetent.

2.                  The first appellant pay the respondent’s costs.

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

the court

1                     On 15 August 2001, the Court heard a notice of motion filed on 22 March 2001, on behalf of the respondent (“the Minister”).  That notice of motion sought an order that the purported appeal, instituted by the filing of a notice of appeal on 15 March 2001, be dismissed as incompetent. 

2                     The notice of appeal filed by Malcolm Huntley Potier purported to appeal from the judgment of Stone J given on 27 February 2001.  In that judgment, her Honour ordered that an application for an extension of time in which to file and serve a notice of appeal from a judgment of Wilcox J, be refused. 

Background

3                     The background facts can be stated briefly.  The appellant, Mr Potier, is a citizen of the United Kingdom.  He lived for some time in a de facto relationship with Myra Oswald.  Together they had a daughter, Sarah, who was born in April 1997. 

4                     Mr Potier came to Australia in 1999 bringing Sarah with him.  Subsequently, Ms Oswald came to Australia and made a successful application to the Family Court for a custody order pursuant to the Hague Convention on the Abduction of Children.

5                     Mr Potier then applied, on behalf of himself and his daughter, for a protection visa.  That application was refused.  The Refugee Review Tribunal (“the RRT”) confirmed that refusal.  When the matter was before the RRT, the Member drew Mr Potier’s attention to the definition of “refugee” contained in Art 1A(2) of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol.  The Member noted that Art 1A(2) specified particular reasons, one or more of which must be claimed as the basis for having a well-founded fear of persecution, if returned to the country of nationality.  Mr Potier candidly informed the Member that he made no claims based upon any of those grounds.  He put nothing before the RRT that suggested that he had a well-founded fear of being persecuted for any of the specified reasons.  In those circumstances it was scarcely surprising that the RRT rejected his application.

6                     Mr Potier subsequently sought review of that decision in this Court.  On 3 November 2000 his application for review was heard by Wilcox J.  Mr Potier appellant submitted that the RRT had erred in law in rejecting his claim notwithstanding the fact that he could not bring himself within the precise terms of Art 1A(2). 

7                     Wilcox J drew Mr Potier’s attention to s 36 of the Migration Act 1958 (Cth) (“the Act”) which provides:

“(1)     There is a class of visas to be known as protection visas.

(2)            A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

…”

8                     His Honour suggested to Mr Potier that, on his own admission, he fell outside the terms of the Convention and was not therefore a person to whom Australia had protection obligations.  Mr Potier’s response was to emphasise the use of the indefinite article “a” at the commencement of subsection (2).  He submitted that the subsection merely stated one of a number of criteria for a protection visa, that particular criterion not being one which he was required to satisfy. 

9                     Although his Honour described Mr Potier’s argument as having the “charm of ingenuity”, he concluded, not surprisingly, that it was misconceived.

10                  On 28 November 2000 Mr Potier filed an application for an extension of time to file and serve a notice of appeal against the judgment of Wilcox J, and also a draft notice of appeal.  Under O 52 r 15(1)(a) of the Federal Court Rules, a notice of appeal is generally to be filed and served within 21 days after the date on which the judgment appealed from is pronounced.  Accordingly, Mr Potier’s notice of appeal was out of time by several days.  However, O 52 r 15(2) provides that the Court has a discretion to grant leave to appeal out of time “for special reasons”. 

11                  On 27 February 2001 Mr Potier’s application for leave to appeal out of time was heard by Stone J.  As noted earlier, her Honour dismissed that application, essentially upon the basis that the appeal did not have sufficient prospects of success to warrant the grant of leave.

the appeal to this court

12                  On 15 March 2001 Mr Potier filed a notice of appeal purporting to appeal from her Honour’s judgment of 27 February 2001 refusing leave.  By notice of motion filed on 22 March 2001 the Minister sought an order that the purported appeal be dismissed as incompetent. 

13                  The Minister submitted that, in accordance with Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543:

·                     a single judge hearing an application for an extension of time within which to institute an appeal to the Court exercises the appellate jurisdiction of the Court (Federal Court of Australia Act 1976 (Cth) s 25(2)(b) and O 52 r 15(2) of the Federal Court Rules); and

·                     no appeal lies to the Full Court from a judgment in the appellate jurisdiction of the Court. 

conclusion

14                  In Wati a Full Court comprising von Doussa, Moore and Sackville JJ said at 548:

“… a single judge hearing an application for an extension of time within which to institute an appeal to the Court is exercising the appellate jurisdiction of the Court.”

15                  In arriving at that conclusion their Honours followed a decision of another Full Court in Hall v Anderson (unreported, 18 July 1997).  That Full Court held that the power:

“… under O 52, r 15(2) of the [Federal Court Rules] for ‘the Court or a Judge’ for special reasons at any time to give leave to file and serve a notice of appeal involves a true alternative and not a progressive choice.  A party wishing to apply for an extension of time within which to institute an appeal must elect between approaching a Full Court or a single judge. 

In our opinion, where a Judge has refused to give leave to file and serve a notice of appeal outside the period referred to in O 52 r 15, no appeal to the Full Court, not an application for leave to appeal made to a Full Court, from a decision of the Judge refusing leave, is competent.  It follows that the present appeal is not competent.”

16                  It seemed clear, on 15 August 2001, when this appeal was heard that the reasoning in Hall and Wati was decisive, and rendered Mr Potier’s appeal incompetent.  However, Mr Potier appeared unrepresented, and sought an adjournment to enable him to research the legal issues involved and to make submissions regarding the applicability or correctness of these two decisions.  Not without some hesitation, the Court agreed to his request.  It set down a timetable within which each party would make written submissions regarding these issues. 

17                  Mr Potier has failed to comply with the directions given as to the filing of written submissions.  He has been given ample opportunity to consider the legal issues involved, and to be heard in relation to them.  The Court is entitled to conclude that he has failed to make any submissions regarding the competency of his appeal because he recognises that his case is hopeless. 

18                  Even if we were not persuaded that the Minister’s contentions regarding competency were correct, we would nonetheless order that the appeal be dismissed.  Mr Potier’s argument regarding the construction of Art 1A(2) is devoid of merit. Stone J was plainly correct in refusing his application for an extension of time.

19                  Mr Potier’s daughter’s claim to refugee status is entirely dependent upon her father’s claim.  It follows from the dismissal of his claim that her appeal too must be dismissed. 

20                  The first appellant must pay the respondent’s costs.

Associate:

Dated:  14 December 2001

The First Appellant appeared in person on behalf of both appellants