FEDERAL COURT OF AUSTRALIA

Applicant M244 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1073

MIGRATION – practice and procedure – application for extension of time – application for leave to appeal from an interlocutory decision.

Federal Court of Australia Act 1976(Cth) ss 25(2)(b) and (a) 

Federal Court Rules O 51A, O 51A rr 5(1)(a) and (b), O 52 r 10(b)

High Court Rules O 55 rr 17 and 30, O 60 r 6

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 referred to

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

Makhoul v Barnes (1995) 60 FCR 572 referred to

NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs  (2003) FACFC 297 followed

Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 referred to

Spencer Bower, Res Judicata, 3^rd ed., 1996

APPLICANT M244 OF 2003 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 908 of 2004

CRENNAN J

18 AUGUST 2004

MELBOURNE

THE COURT ORDERS THAT:

1.         The application for an extension of time within which to seek leave to appeal and the application for leave to appeal be refused.

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 an extension of time within which to file and serve an application for leave to appeal from the judgment of the primary judge given on 2 July 2004, coupled with an application for leave to appeal.  These applications fall within subsections 25(2)(b) and (a) respectively of the Federal Court Act 1976 (Cth).  The extension of time is required because the application for leave to appeal was not filed and served within the time specified in O 52 r 10(b) of the Federal Court Rules. 

2                     The background to the appeal briefly is as follows.  The applicant is a national of Sri Lanka who arrived in Australia on 14 May 1998.  His wife and two children remained in Sri Lanka.  On 15 January 1999 a delegate of the respondent refused his application for a Protection Visa.  The Refugee Review Tribunal (the “Tribunal”) affirmed the delegate’s decision on 17 August 2001.  On 25 July 2002 the applicant filed an application for an order nisi in the High Court seeking constitutional writs of prohibition, certiorari, mandamus and an injunction.  The application for an order nisi was remitted to this Court on 7 February 2003. 

3                     On 15 July 2003 the remitted application was dismissed by consent.  However, on the next day, 16 July 2003 a representative of the Asylum Seeker Resource Centre wrote to the respondent solicitors on behalf of the applicant advising that the applicant did not wish to discontinue the proceeding.  As orders had already been made by consent to dismiss the application the applicant lodged a further application for an order nisi in the High Court on 12 August 2003.  This application in identical terms to the draft order nisi in respect of which the application was dismissed by consent.  In due course this second order nisi was remitted to this court on 24 February 2004.  In that second draft order nisi the applicant alleged numerous grounds upon which judicial review was sought.  These included failure to accord natural justice, failure to take account of relevant considerations, unreasonableness, bias and jurisdictional error.  An affidavit in support of the draft order nisi,which was sworn on 6 August 2003, did not contain any particulars of these grounds.  The application was then set down for hearing before the primary judge on 2 July 2004. 

4                     As the application for an order nisi was made almost two years after the Tribunals’ decision, insofar as the applicant sought certiorari and mandamus the applicant required the court to grant him an extension of time within which to bring the application (O 55 r 17 and 30 of the High Court Rules), insofar as the applicant sought writs of certiorari and mandamus.  There is a general power to enlarge time: O 60 r 6.  The applicant did not appear before the primary judge.  In dismissing the application for an order nisi, the primary judge stated that

“In this matter I have read the material and I am not satisfied that there is an arguable case for an order nisi.  Further, the respondent has filed detailed and comprehensive submissions outlining why questions of res judicata and issueestoppel as well as abuse of power ought to preclude the raising of grounds that have been dismissed.

…

In grounds relied upon which were raised in a proceeding by the same applicant which were previously dismissed, it seems to me that those arguments are well founded and in those circumstances it is unnecessary to consider the extension of time aspect.  I am satisfied that it is a matter which has no real prospect of success and there are no arguable grounds for an order nisi, so I propose to dismiss the application.”

5                     The decision of the primary judge was, as he remarked, an interlocutory decision.  Thus the applicant requires leave to appeal pursuant to s 24(1) and (1A) of the Federal Court of Australia Act 1976 (Cth): NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297.  This is distinguishable from cases where final orders have been made under O 51A of the Federal Court Rules. 

6                     As the notice of appeal was filed more than seven days after the decision of the primary judge on 22 July 2004, the applicant also requires an extension of time within which to file and serve the application for leave to appeal (O 52 r 10(b) of the Federal Court Rules).  The only reason given by the applicant for an extension of time is that he ‘did not understand the difference between an interlocutory and a final decision’. 

7                     The draft notice of appeal asserts three grounds of error on the part of the primary judge but no further particulars are provided.  The three grounds refer to “findings” made by the primary judge.  He made no such findings.  He was satisfied that there were no arguable grounds for an order nisi because of estoppel and abuse of process issues arising because the applicant had consented to the dismissal of an earlier, identical application.  The respondent representative submitted that the primary judge did not consider or make findings about whether the Tribunal properly considered the application or whether it asked itself the correct question or whether it failed to take into account relevant considerations.

8                     The principles to be applied in considering whether leave to appeal from an interlocutory decision should be granted are those to be derived from the line of authority referred to in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 (“Décor Corporation v Dart”).  In determining whether leave to appeal from the interlocutory decision should be granted, and following Décor Corporation v Dart, the tests to be satisfied are whether the decision at first instance was attended with sufficient doubt to warrant its reconsideration by an appellate court and whether substantial injustice would result if leave to appeal were refused.  In turn, an application for an extension of time within which to apply for leave will turn on the prospects of success in obtaining leave to appeal.  If they are non-existent it would be futile to grant an extension of time. 

9                     Whilst the primary judge did not refer to authority when taking the course he did, there is authority for that course insofar as it depended on res judicata and estoppel issues in the context of an applicant having consented to an earlier dismissal of an identical application.  Chamberlain v Deputy Commissioner of Taxation  (1988) 164 CLR 502 at 508 and 511; Makhoul v Barnes (1955) 60 FCR 572 at 582 E, F, G; Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 at [43], [44] and [54]; see also Spencer Bower, Res Judicata, 3^rd ed. 1996 [38] – [40] and [171].  Such authority can apply to applications which are interlocutory, noting in that context that O 51A rr 5(1)(a) and (b) of the Federal Court Rules permit dealing at the one hearing with an interlocutory application for an order nisi and an application for a final order absolute. 

10                  When asked to identify errors in the decision of the primary judge the applicant was unable to state any errors.  His application was based on his health problems; he wishes to stay in Australia for treatment for an accident he suffered in Australia at work in 2002.  The Tribunal noted that this accident was very unfortunate but it had no bearing on the Tribunal’s decision as to whether the applicant would face a real chance of persecution in his country of nationality. 

11                  The decision of the primary judge is not attended by any doubt sufficient to warrant its reconsideration.  Accordingly the application for an extension of time within which to seek leave to appeal is refused.  Had an extension of time been granted the application for leave to appeal would also have been refused.  The applicant must pay the respondents costs. 

Associate:

Dated:              18 August 2004