FEDERAL COURT OF AUSTRALIA

M206 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 412

Migration Act 1958 (Cth) s 417

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

M206 OF 2002 V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V 188 OF 2004

WEINBERG J

6 APRIL 2004

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a judgment of Goldberg J delivered on 29 January 2004: M206 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 24.  By that judgment, his Honour, in effect, refused to grant an order nisi seeking what are generally described as “constitutional writs”.  His Honour’s judgment was interlocutory.  For that reason, the applicant requires leave to appeal. 

2                     The matter came before Goldberg J on remitter from the High Court.  It was commenced in that Court on 28 November 2002 when the applicant filed an affidavit and draft order nisi for the issue of a writ of prohibition against the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) prohibiting him from proceeding further with “Matter No V97/07540 in the Refugee Review Tribunal”.  That matter was a review by the Refugee Review Tribunal (“the Tribunal”) of the refusal, on 24 July 1997, by a delegate of the Minister to grant a protection visa to the applicant pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”).  On 4 November 1999 the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.

3                     The applicant also sought a writ of certiorari to quash the decision of the Tribunal, and the order made by it, on 4 November 1999.  In the draft order filed with the High Court the applicant sought an extension of time, having regard to the fact that the application for a writ of certiorari was filed more than six months after the date of the Tribunal’s decision.

4                     On 7 February 2003 the High Court remitted the application for an order nisi to this Court.  The remittal included the application for an extension of time.

5                     The background to this application can be summarised briefly.  The applicant is a citizen of Sri Lanka.  He arrived in Australia on 28 July 1995.  On 30 June 1997 he lodged an application for a protection visa.  A delegate of the Minister refused that application on 24 July 1997.  On 20 August 1997 the applicant sought a review of that decision in the Tribunal. 

6                     The applicant’s claim for a protection visa was based solely on the fact that his brother was suspected by the Sri Lankan security forces of having assisted Tamil separatists and, in particular, the Liberation Tigers of Tamil Eelam (“the LTTE”).  The brother and his parents had left Sri Lanka in February 1997, and had since sought protection in Australia.  The applicant also claimed that, as a Burgher, he did not believe that the Sri Lankan authorities would protect him.

7                     The Tribunal found that while the security forces might suspect the applicant’s brother of involvement in people smuggling, it did not accept that he would be branded as an LTTE sympathiser.  It concluded that the brother would be of little interest to the police once he told them the truth about his role as a travel agent in helping to arrange international travel for a particular LTTE suspect.  The Tribunal found that there was not a real chance that the applicant would face persecution because of his connection with his brother, and gave “no credence” to his professed fear that he might be mistaken for his brother. 

8                     On 17 December 1999 the applicant filed an application for review of the Tribunal’s decision in this Court.  On 17 July 2000 Merkel J, in a comprehensive judgment dealing with a number of challenges to the Tribunal’s decision, dismissed that application.  No appeal was brought from the judgment of Merkel J.

9                     On 24 August 2000 the applicant, his brother and parents filed an application in the High Court for an order nisi seeking constitutional writs in relation to the Tribunal’s decision.  On 22 February 2002 the applicant and the other members of his family discontinued their application in the High Court. 

10                  On 21 June 2002 the applicant wrote to the Minister requesting him to exercise his powers under s 417 of the Act to grant him a humanitarian visa.  That application was refused on 12 November 2002.  It was sixteen days later that the application that later came to be heard by Goldberg J was filed in the High Court.

11                  Goldberg J refused to grant an order nisi.  His Honour held that there was no basis for the extension of time that was sought, and required, in order to grant a writ of certiorari.  He noted that just over three years had elapsed between the date of the Tribunal’s decision and the filing of the application in the High Court, although he was conscious of the fact that during that period the applicant had brought proceedings for review in this Court, and filed an earlier application in the High Court which had been discontinued.  His Honour concluded that the explanation given by the applicant for the delay was “less than satisfactory” but said that the question whether leave should be granted could be resolved by reference to other issues. 

12                  Goldberg J noted that the applicant had made a conscious decision to abandon the route of seeking to review the decision of the Tribunal and rather decided to follow the alternative route of lodging an application for the exercise of discretion under s 417.  His Honour also considered, when determining whether to extend time, the applicant’s prospects of success in obtaining an order for the issue of a writ.  The only substantive ground of error said to have been made by the Tribunal was to be found in the particulars set out in the draft order nisi.  That ground was expressed in terms that were barely coherent, and his Honour concluded that the applicant had no prospects of success in making it out.  It followed that the application for an extension of time within which to file the application for a writ of certiorari was refused.  The same conclusion applied to the application for an order nisi for a writ of prohibition.  There were no grounds to warrant the issue of such a writ.

13                  Goldberg J noted that the Minister had also submitted that the earlier application for judicial review dismissed by Merkel J on 17 July 2000 resulted in the applicant being precluded from bringing fresh proceedings to challenge the Tribunal’s decision.  The Minister relied upon the principles of res judicata, issue estoppel, and Anshun estoppel.  His Honour did not find it necessary to rule upon the Minister’s submissions regarding those matters.

14                  The principles that govern leave to appeal from an interlocutory judgment are well established.  They are set out in the judgment of the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.  In substance, the applicant must show that the decision at first instance was attended with sufficient doubt to warrant it being reconsidered.  He must also show that substantial injustice would result if leave were refused, supposing the decision at first instance was incorrect.  These tests are qualified in circumstances where substantive rights, rather than points of practice, are at issue. 

15                  I accept that this is a case in which leave would more readily be granted because substantive rights are in issue.  However, I can see no basis upon which the decision of Goldberg J can be impugned.  His Honour’s analysis of each of the issues raised was squarely based upon well-established authority, and his reasoning was, in all relevant respects, plainly correct. 

16                  The applicant, regrettably, was unrepresented before me.  The only ground of appeal upon which he proposes to rely, if leave to appeal is granted, is in the following terms:

“RRT failed to accord procedure of fairness and breached the rule of natural justice.  I had no solicitor to represent my case.  I had no money to get a proper legal representation.  Now I am trying to borrow money from my friend, so that I can be represented by solicitor.”

17                  The first sentence in the proposed ground raises an issue that was not argued before Goldberg J, and was not the subject of any elaboration before me.  The balance of the proposed ground does not raise any arguable error on the part of Goldberg J that would justify the grant of leave to appeal.  The proposed ground is therefore hopeless. 

18                  In all the circumstances, the application for leave to appeal must be dismissed.  The applicant must pay the respondent’s costs.

Associate:

Dated:              6 April 2004