FEDERAL COURT OF AUSTRALIA

Applicants A64 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1142

IMMIGRATION – application for prerogative relief against orders of Refugee Review Tribunal instituted in High Court – application outside time prescribed by High Court Rules – ‘further proceedings’ remitted to Federal Court ‘as if the steps already taken in the application in this Court had been taken in that Court’ – no time prescribed by Federal Court rules for such prerogative relief – whether in circumstances application for extension of time still necessary

PRACTICE AND PROCEDURE – application for extension of time to apply for prerogative relief refused – no order made dismissing the proceeding – whether refusal of extension of time finally determines the rights of the parties

Migration Act 1958 (Cth)

Federal Court of Australia Act 1976 s 24(1)(A)

Judiciary Act 1903 (Cth) ss 44(1), 44(2A)

Applicants A64/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 568 cited

Jess v Scott (1986) 12 FCR 187 referred to

Decor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397 considered

Johnston v Cameron [2002] FCAFC 251 referred to

Cubillo v Commonwealth (2001) 183 ALR 249 at 250; [2001] FCA 1213 referred to

State Bank of New South Wales v The Commonwealth Savings Bank of Australia (1984) 154 CLR 579 referred to

Bowtell v Commonwealth of Australia (1989) 86 ALR 31 referred to

Pozniak v Smith (1982) 151 CLR 38 referred to

Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited

APPLICANTS A64 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 569 OF 2003

MANSFIELD J

20 OCTOBER 2003

ADELAIDE

REASONS FOR JUDGMENT

1                     This is an application for an extension of time to file and serve a notice of appeal from a judgment of a judge of the Court given on 29 May 2003:  Applicants A64/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 568.  The application is made under O 52 r 15 of the Federal Court Rules which prescribes a period of 21 days within which any appeal may be brought from a judgment or order of the Court.

2                     Order 15 r 15(3) provides:

‘Notwithstanding anything in the preceding sub-rule, the Court or a judge for special reasons may at any time give leave to file and serve a notice of appeal.’

3                     The background to the present application is quite straightforward.  The applicants arrived in Australia on a visitor visa from Sri Lanka on 20 December 1996.  On 24 January 1997, they applied for a protection visa under the Migration Act 1958 (Cth) (the Act).  That application was refused by a delegate of the respondent on 16 May 1997, and on review by the Refugee Review Tribunal on 28 May 1999.

4                     The applicants sought judicial review of that decision.  Their application in that regard was unsuccessful before a single judge of the Court on 27 October 2000, and before the Full Court on 4 July 2001.  On 3 May 2002 an application for special leave to appeal to the High Court was refused.  By that point, the normal review and appeal processes had been exhausted.

5                     On 17 May 2002 the applicants sought prerogative relief in the High Court of Australia.  That application was remitted to this Court for hearing by order made on 7 February 2003.  Under the High Court Rules, an application of the nature made to the High Court, principally for a writ of certiorari to call up and quash the decision of the Tribunal, was well out of time.  The relevant time limits are prescribed in O 55 r 17 and r 30 of the High Court Rules.

6                     Pursuant to directions given by this Court under its Rules (see O 51A r 2A of the Federal Court Rules), on 3 April 2003 the applicants determined to apply for an extension of time within which to have brought the proceedings.  It is that application which is the subject of the decision on 29 May 2003 that it be refused.  The formal orders of the Court on that occasion were that:

‘1.        The notice of motion seeking an extension of time is dismissed.

2.                 The applicant to pay the respondent’s costs, fixed at $1,250, including disbursements.’

It is plain that that order was intended to be the costs of the first respondent as the second and third respondents had filed submitting appearances.

7                     At that time, no order was made dismissing the application.

8                     The present application assumes that the order of 29 May 2003 was an order determining finally the rights of the applicants on the application for prerogative relief before the High Court.  It is on that basis that the present application is made.  Order 52 r 15(2) permits an order to be made extending time to appeal, and the applicable principles to consider whether to grant the extension of time sought are clear enough.  They were discussed, for example, in Jess v Scott (1986) 12 FCR 187 at 195.  Consequently, although the circumstances indicate that the delay in instituting the application is only short, and the reasons for the delay understandable, in my view it is necessary for the Court (if the orders of 29 May 2003 did finally determine the rights of the parties) to be satisfied that there is some arguable point to be taken on the proposed appeal before extending the time within which to appeal.  It is inappropriate, in my judgment, simply to grant an extension of time unless there is some issue arising on the merits of the case which might be seen possibly to deserve the attention of a Full Court.  There will be no substantial injustice to the applicants if an extension of time for appeal is not granted where there is nothing to indicate that there is any prospect of success on the appeal if the extension of time is granted.

9                     In this matter, the delay is short and the reasons for it explained.  If the decision of 29 May 2003 were a final judgment, the appeal should have been instituted by 20 June 2003.  The present application was made on 26 June 2003, only some six days late.  Moreover, the judgment was given ex tempore, and reasons for the decision were not, on the evidence, available to the applicants in written form at least until 11 June 2003.  They instituted the present application promptly thereafter.  I have also taken into account that the applicants reside in, and have engaged solicitors in, Victoria, but the papers were lodged in South Australia.  There was some additional delay in that course, together with the process of determining whether the appropriate application was one to seek leave to appeal from a final judgment of a judge of the Court, or to seek leave to appeal from an interlocutory judgment of a judge of the Court.

10                  Accordingly, on the assumption that leave to appeal was necessary, I would be minded to grant the extension of time sought provided that I am satisfied that the appeal, if instituted, would otherwise be competent and provided there is some argument available to the present applicants worthy of the consideration of the Full Court upon an appeal.  For reasons which appear below, I do not need to further consider that question.  I note, however, that a legal opinion (exhibited to an affidavit of the applicant’s present solicitor) expresses the view that the proposed appeal ‘has a reasonable prospect of success’.  I note also that counsel for the applicants has presented a substantial written submission dated 15 August 2003 contending that there are good grounds to demonstrate the Tribunal’s decision was made beyond jurisdiction because it involved jurisdictional error. 

11                  However, I am not of the view that the decision and orders made on 29 May 2003 did finally determine the rights of the parties.  If it were an interlocutory decision, s 24(1)(A) of the Federal Court of Australia Act 1976 (Cth) would apply, to prevent any appeal unless the Court or a judge gives leave to appeal.  Order 52 r 10 requires an application for leave to appeal to be filed and served within seven days from the interlocutory judgment from which leave to appeal is sought, or within such further time as the Court or a judge may allow.  Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 discusses the considerations relevant to determining whether to grant leave to appeal from an interlocutory decision, including an application for leave to appeal from a decision where the application is made belatedly.  Of course the relevant considerations cannot be exhaustively expressed, but they include whether in the circumstances the interlocutory decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court, and whether substantial injustice would result if leave were refused supposing the decision were to be wrong.  In determining the injustice, it is appropriate to have regard to the practical effect of refusing the leave to appeal:  Johnston v Cameron [2002] FCAFC 251 at [8] per Branson J.

12                  In this matter, the orders made on 29 May 2003 did not include an order formally dismissing the application.  If the applicants were entitled or able to bring a fresh application for an extension of time by motion, clearly the decision complained of would be interlocutory.  It would not finally determine the substantive rights of the parties:  see Cubillo v Commonwealth (2001) 183 ALR 249 at 247;  [2001] FCA 1213 at [182] per Sackville, Weinberg and Hely JJ.

13                  In my judgment, the legal effect of the orders made on 29 May 2003 was not finally to determine the rights of the parties.  The substantive application remitted to the Court by order of Hayne J remained, and remains, on foot.  If an extension of time to have instituted the principal application were necessary, the applicants could apply again for an extension of time.  The fact of the earlier unsuccessful application for an extension of time would no doubt be a relevant matter in consideration of a subsequent similar application, but it would not foreclose it.  Accordingly, I do not consider it appropriate to determine the present application under O 52 r 15, but to address it under O 52 r 10.

14                  I have reached the view that, under O 52 r 10, it is not appropriate to extend the time within which to seek leave to appeal from the decision and orders made on 29 May 2003 or to grant leave to appeal from that decision and those orders.  That is simply because, in my judgment, the extension of time sought and the leave to appeal sought is unnecessary.

15                  I do not accept that, in the events which happened, the applicants do not need an extension of time within which to have instituted the application in the High Court.  It was instituted on 17 May 2002, nearly three years after the decision of the Refugee Review Tribunal which it sought to quash.  The orders sought were in the nature of certiorari, mandamus and prohibition.  Under O 55 rr 17 and 30 of the High Court Rules, limitation periods of six months and two months respectively are imposed upon applications for orders in the nature of certiorari and mandamus, but no time limit is imposed upon an application for orders in the nature of prohibition.  The time limits so imposed may be extended under O 60 r 6 of the High Court Rules.

16                  The order of Hayne J of 7 February 2003 was as follows:

‘1.        The further proceedings in this application be remitted to the Federal Court of Australia.

2.                  The application proceed in that Court as if the steps already taken in the application in this Court had been taken in that Court.’

17                  It was argued that the effect of the second order is that the principal application proceed in this Court as if it had been commenced in this Court.  The proposition includes the premise that the ‘steps already taken’ include the steps of instituting the application itself.  It is pointed out that, apart from the directions given on 7 February 2003, no other steps appear to have been taken in the High Court.  Under the Federal Court Rules, no time limits apply in respect of applications for orders in the nature of certiorari, mandamus or prohibition.

18                  In my view, the order of remittal of 7 February 2003 does not have that intent.  Order 1 refers to the ‘further proceedings in this application’ being remitted to this Court.  Order 2 then relates to how the application should further take place in this Court.  The reference to the steps already taken is to ensure that whatever procedural steps had been taken in the High Court to the time of remittal did not require to be repeated, so that the conduct of the proceedings in this Court should progress efficiently.  Section 44(1) of the Judiciary Act 1903 (Cth) empowers the High Court to remit ‘further proceedings’ in a matter to other Courts.  The terms of Order 1 of the remittal orders made on 7 February 2003 reflect that expression.  By way of contrast, s 44(2A) of the Judiciary Act 1903 empowers the High Court to ‘remit the matter or any part of the matter’ to this Court.  In any event, the High Court would not by a remittal order alter the rights of the parties unless it explicitly intended to do so:  State Bank of New South Wales v The Commonwealth Savings Bank of Australia (1984) 154 CLR 579 per Gibbs CJ at 586.  And, as Toohey J pointed out in Bowtell v Commonwealth of Australia (1989) 86 ALR 31 at 32, the remittal power does not extend to directing the Court to which the matter has been remitted whether to apply a particular view of the law.  Pozniak v Smith (1982) 151 CLR 38 recognised that the power of the High Court to give directions at the time of remittal is confined to matters of procedure:  per Gibbs CJ, Wilson and Brennan JJ at 44.  Whilst there is scope for debate about whether the effect or operation of O 55 rr 17 and 30 of the High Court Rules do prescribe matters of procedural law or of substantive law, I do not consider that Hayne J intended by the remittal order made on 7 February 2003 that, to the extent to which the application had been instituted out of time by reason of O 55 rr 17 and 30 of the High Court Rules, it should no longer be regarded as having been instituted out of time.  Order 51A rr 2A and 4 of the Federal Court Rules provide that, subject to any direction of the High Court, the Federal Court Rules apply as relevant to a remitted matter.  What was remitted was the ‘further proceedings’ in the matter.  Those rules do not, in my view, address the issue as to whether the substantive application was out of time except to the extent (as occurred) of having the Federal Court Rules prescribe how any application for an extension of time should be pursued.

19                  The significant matter, however, is that refusal of an extension of time to seek leave to appeal and refusal of leave to appeal will cause the applicants no real injustice.  They may prosecute the principal application in any event, at least to the extent that it seeks an order in the nature of prohibition.  They may re-apply for an extension of time to have instituted the application for orders in the nature of certiorari and mandamus.  There was a paucity of material upon which the motion for an extension of time was pressed leading to the decision on 29 May 2003.  If a further application for an extension of time is pursued, particularly if supported by more extensive material (and by an explanation why the new material was not earlier produced), the adverse discretionary factor of the earlier unsuccessful motion is not likely to be decisive or of great weight if the justice of the case otherwise requires.  The decision of 29 May 2003 was made in the context that the applicants had not filed any affidavit material explaining the delay in the making of the principal application to the High Court, and where the ‘Muin’ proposed ground of appeal (see Muin v Refugee Review Tribunal (2002) 190 ALR 601) was supported only by speculative submissions and not by evidence.

20                  In those circumstances, the applicants may seek directions that the principal application and any proposed motion for an extension of time within which certain of the orders sought in the principal application be heard and determined at the same time.

21                  For those reasons, I do not at present make an order extending the time for the applicants to seek leave to appeal from the decision and orders made on 29 May 2003 or giving leave to appeal from the decision and orders.  If, however, it transpires despite my conclusion, the decision and orders of 29 May 2003 do provide a real and substantial obstacle to the applicants being able to pursue their claims, I would be prepared to further consider the application.  I shall simply make no order on the application in the circumstances, rather than dismiss it, and I shall reserve liberty to apply to any party to renew the application.

22                  I consider in the circumstances that the costs of the application of 26 June 2003 should be costs in the principal application instituted in the High Court on 17 May 2002 and remitted to this Court by order made on 7 February 2003.

Associate:

Dated:              17 October 2003