FEDERAL COURT OF AUSTRALIA

M153 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 251

M153 of 2002  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V582 of 2004

RYAN J

17 MARCH 2005

MELBOURNE

On appeal from the Federal Magistrates’ Court

THE COURT ORDERS THAT:

1.         The appeal be adjourned to 11 April 2005 at 10.15 am for further submissions in conformity with the reasons of the Court published this day.

2.         Liberty be reserved to either party to apply for further or other directions on not less than 48 hours notice in writing to the other party.

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

On appeal from the Federal Magistrates’ Court

REASONS FOR JUDGMENT

1                     The appellant seeks to appeal from orders of Phipps FM on 28 April 2004.  By those orders, his Honour dismissed the appellant’s application and ordered him to pay the first respondent’s costs fixed in the sum of $5,403. 

2                     In the course of his reasons for those orders, the learned Magistrate recounted the appellant’s history since his arrival in Australia on 5 November 2001.  His application for a protection visa had been refused by a delegate of the first respondent (“the Minister”) on 6 December 2001.  On 17 June 2002, the Refugee Review Tribunal (“the Tribunal”) affirmed that refusal.  An application to this Court for review of the Tribunal’s decision was dismissed by Weinberg J on 15 March 2002.  An appeal from that order was dismissed by a Full Court of this Court on 23 August 2002.  On 6 September 2002, the appellant applied to the High Court for prerogative writs in respect of the Tribunal’s decision and an extension of time within which to seek that relief.  That application was remitted to this Court by order of Hayne J in the High Court on 7 February 2003.  By an order made in this Court by Marshall J on 24 April 2003 the matter was further remitted to the Federal Magistrates Court.  By the same order, directions were given for the appellant to file and serve an amended application and contentions of fact and law.  Similar directions were given by Registrar Wood when fixing the matter for hearing in the Federal Magistrates’ Court but the appellant complied with neither Marshall J’s directions nor those given by the Registrar.  In the event, Phipps FM had before him when the hearing proceeded on 28 April 2004 only the general grounds set out in the application to the High Court which were in these terms;

‘1.        The Respondents do show cause why a Writ of Prohibition should not be issued out of this Court directing the Second respondent to refrain from giving effect to the decision dated 17^TH January 2002.

2.         The respondents do show cause why a Writ of Certiorari should not be issued out of this Court directed to the Second Respondent calling up and quashing its decision dated 17^TH January 2002 and why a Writ of Mandamus should not be issued out of this Court directed to the Second Respondent directing it to determine the Applicant's application for a protection visa according to law up on the ground that:

(1)       the Second Respondent made the decision in circumstances which amounted failure to accord the Applicant natural justice.

(2)       the Second Respondent constructively failed to exercise its jurisdiction in that it failed to take into a account relevant considerations in the exercise of its power under the Act, which it was bound by the Act to take into account in the circumstances of the case, and/or took into account irrelevant considerations in the exercise of its power under the Act.

(3)       that the decision of the Second Respondent was so unreasonable that no reasonable decision-maker could have made it.

(4)       the Second Respondent constructively failed to exercise its jurisdiction in that it was affected by an error of law in the exercise of its power under the Act.

(5)       the Second Respondent failed to exercise its jurisdiction in that in making the decision there was an improper exercise of power conferred by the Act, because the decision was:

(a)        affected by bad faith or bias;

(b)        made for an ulterior purpose;

(c)        not made in accordance with the procedures set out in the Act;

(6)       the Second Respondent failed to exercise the jurisdiction conferred on it by the Act in that the exercise of power under the Act is based on a finding for which there was no evidence or other material.

(7)       the Second Respondent made the decision in the circumstances, which were otherwise contrary to the law.

3.         Further, the Respondent does show cause why relief should not other wise is granted under ss.75(ii) or 75(v) of the Constitution, namely:  an injunction prohibiting the First Respondent himself by his officers and agents from removing the Applicant from Australia pending the determination according to law of his application for a protection visa.’

3                     In addition the appellant has filed an affidavit in this Court affirmed 6 May 2004 which recites the history recounted above to the dismissal on 28 January 2002 by the Federal Magistrates Court of the appellant’s application for prerogative relief and continues;

‘7.        I understand that the Federal Magistrates Court dismissed my case because the court did not accept there was a jurisdictional error in the RRT decision.

8.         I seek this matter to be heard by the Federal Court.  I am in fear for my life and for the safety and well-being of myself if I am required to return to Sri Lanka.

9.         I believe my case has merit and I wish for the court to hear my application.

10.       I wish to expand upon and supplement the matters that I have raised at the hearing of this matter.

11.       I received some assistance from the Asylum Seeker Resource Centre in formatting these documents.

12.       I ask for leave to file and serve out of time because I did not know I only had 7 days to appeal and by the time I got legal advice the 7 days had passed.’

4                     A question has arisen at the threshold of the present application to this Court as to whether the order of Phipps FM was final or interlocutory.  If the effect of the order were to refuse to grant an order nisi, the order would be interlocutory;  see Re Media, Entertainment and Arts Alliance Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 180 and the cases there cited.  Consequently, an appeal from such a refusal could only be brought by leave.  By application of those principles, I was led to refuse leave to appeal from an order of Heerey J in M1027/03 v Refugee Review Tribunal [2004] FCA 733.  In that case, his Honour had expressly stated at the end of his reasons;  “The application for an order nisi is refused with costs.” 

5                     However, in Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150, a Full Court of this Court made it clear that whether a single Judge or Magistrate has made an interlocutory order refusing to grant an order nisi for the issue of a prerogative writ, or has made a final order disposing of the whole “matter” in the sense of the justifiable controversy remitted by the High Court, is a question to be resolved by construing the order of the Judge or Magistrate with recourse, in the event of ambiguity, to surrounding circumstances including the published reasons for the order in question.  I have read the careful reasons of Branson J (with whom Moore and Emmett JJ agreed) in S61 of 2002 and agree with her Honour that O 51A r 5 of the Rules of this Court gives a Judge, and, on remitter, a Magistrate, authority to make a final order dismissing on the merits an applicant’s application for writs of certiorari and mandamus where no order nisi has been granted. 

6                     Order 51A rule 5 provides;

‘(1)      Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge:

(a)       will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and

(b)       if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.

(2)       In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.’

7                     As to the effect of that rule, her Honour said at [40] of her reasons;

‘40       As indicated above, I do not doubt that his Honour intended by his order to dismiss on the merits the appellants’ application for writs of certiorari and mandamus.  In my view, no question arises as to the power of his Honour to make an order with the effect intended by his Honour.  It does not matter, as it seems to me, whether his Honour is to be understood as having proceeded under an authority implicit in O 51A r 5, or under O 19 r 1 having impliedly waived the requirement for the filing of a notice of motion.  However, for the reasons given above, I am satisfied that O 51A r 5 gave his Honour adequate authority to proceed as he did.’

8                     A small divergence of opinion can be detected in the references made by Branson J in S61 of 2002 and those by Moore J (in short separate reasons for judgment) in the same case, to O 55 r 2 of the Rules of the High Court.  Of that rule, Branson J observed, at [24]-[25];

‘24       Order 55 r 1 reflects in a general sense the old Crown Practice concerning prerogative writs. This practice survived the Judicature Acts little changed (see Short and Mellor generally).  An application under O 55 r 1 is an application for one or more of the writs with which the rule is concerned.  Subrule (1) provides that the application may be made ex parte.  Subrule (2) has the effect that most, but not all, applications must be made, in the first instance, by an application for an order calling on the proposed respondent to show cause why the writ should not be issued (ie an order nisi).  However, even where an application for an order nisi has been made but not determined, the ‘matter’ pending in the High Court, within the meaning of s 44 of the Judiciary Act, is, in my view, not simply the application for an order nisi.  The relevant ‘justiciable controversy’ is, or at the least includes, the prosecutor’s entitlement to the writ for which he or she has applied.

25        The above conclusion receives support from the structure of O 55 considered as a whole.  Even where an application has been made for an order nisi as required by O 55 r 1(2), that application may be overtaken by an order made under O 55 r 2 without any fresh proceeding being instituted.  Order 55 r 2 allows a Justice to direct that the application for a writ be made by notice of motion.  Where it is so directed no order nisi will ever issue but rather an inter partes application will be made for the issue of the writ following the service of the notice of motion.  This is the course that was followed in Re Griffin; Ex parte Professional Radio and Electronics Institute of Australia (1988) 167 CLR 37 where Brennan J at 42 issued a direction under O 55 r 2 that the Professional Radio and Electronics Institute of Australia apply by notice of motion to a Full Court for the issue of writs of prohibition and certiorari.’

9                     Her Honour went on to conclude that O 51A r 5 of the Rules of this Court is “designed to allow the two stage process of an ex parte application for an order nisi followed, assuming the initial application to be successful, by an inter partes application for an order absolute, to be avoided in appropriate cases.”  Moore J at [2] of his separate reasons said of O 55;

‘2         Order 55 of the High Court Rules contemplates that, except in three specified circumstances, an application for a constitutional writ is to be dealt with initially as an ex parte application for an order nisi where it will be granted or refused.  So much is apparent, in my opinion, from O 55 r 1(2) which directs that, ‘in the first instance’, the application is to be for an order nisi.  The three circumstances are an application by a Law Officer for specified relief (O 55 r 1(3)), when a judge decides to make an order absolute where it appears necessary for the advancement of justice (O 55 r 1(4)) and when the application is heard on notice (to the respondent) by a judge or a Full Court (O 55 r 2).’

10                  However, his Honour went on to conclude that the scheme evidenced by the High Court rule “is not mirrored in O 51A r 5 of the Rules of this Court.”  He preferred the view that once a matter has been remitted to this Court by the High Court, it falls to be determined in all respects in accordance with this Court’s procedures including those articulated in O 51A r 5. 

11                  I do not regard that difference in approach as significant for present purposes because each of their Honours made it clear that O 51A r 5, whether or not it is illuminated by O 55 of the High Court Rules, authorises this Court (or the Federal Magistrates Court on remitter) to make a final order dismissing an application for prerogative relief without first expressly granting an order nisi. 

12                  It remains to consider whether, on a proper construction of his order, that was what Phipps FM did in the present case. 

13                  In [1] of his reasons the learned Federal Magistrate described the proceedings before him as “an application for judicial review of a decision of the Refugee Review Tribunal.”  His Honour noted, at [3], that, on 6 September 2002, the appellant had instituted proceedings in the High Court which had been remitted by Hayne J to this Court on 7 February 2003.  However, significantly, no reference was made to the fact that neither the High Court nor this Court had made an order nisi nor, apparently, considered whether or not to grant such an order.

14                  At [5]-[8] of his reasons, the learned Federal Magistrate considered a submission made before him on behalf of the Minister as to the application of res judicata, issue estoppel and the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.  His Honour went on to hold that the present case is indistinguishable from Somanader v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 670.  It is significant that, in that case, Merkel J was considering a matter which had been remitted to this Court by the High Court on 23 November 1999 after Hayne J had granted an order nisi calling for, amongst other things, the Tribunal to show cause why writs of mandamus, prohibition or certiorari should not issue out of the High Court pursuant to s 75(v) of the Constitution in respect of a decision of the Tribunal.  Merkel J concluded that an order by consent dismissing the appellant’s original proceeding under Pt 8 of the Migration Act 1958 (Cth) (“the Act”) disentitled the appellant to claim relief by way of judicial review and prerogative relief on the same grounds under s 75(v) of the Constitution.  In the present case, the learned Magistrate applied the same reasoning to support an order that “the application is dismissed.”  By implication, therefore, his Honour assimilated the present case to that before Merkel J in which an order nisi had already been granted so as to call for a final order.  Support for that interpretation of the order in the Federal Magistrates Court is also provided by the form and amount of the order for costs which was appropriate to a final disposition of the matter. 

Conclusion

15                  Having regard to all of the aspects of the present proceedings in the High Court, this Court and the Federal Magistrates Court, I have reached a clear view that the order of the latter Court was a final one.  It is in all relevant respects indistinguishable from the order considered by a Full Court of this Court in M18/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 127 (Moore, Sackville and Emmett JJ) where their Honours concluded, at [21];

‘One procedural point should be noted.  The matter came to this Court on remitter from the High Court.  At that time, all that had been made was an application for an order nisi for constitutional writs.  As a result of a direction of a Registrar of this Court, an amended application was filed in this Court purportedly under s 475A of the Act and s 39B of the Judiciary Act 1903 (Cth).  As a result of a direction given at the Full Court callover, an application for an extension of time in which to apply for leave to appeal was filed on the basis that the judgment of Sundberg J may have been an interlocutory judgment and leave to appeal had not been sought within time.  In our opinion, having regard to the order made by Sundberg J (dismissing the application), the filing of the amended application in this Court (whether regularly or not is presently immaterial), and his Honour's reasons (which, in terms, deals with the matter on a final basis), the judgment was a final one.  No question of leave arises.’

16                  It follows similarly that no question of leave arises in the present case and that the appeal from the orders of the Federal Magistrates Court is as of right.  However, the appellant will still have to demonstrate, in the face of the order of Weinberg J of 15 March 2002 and the dismissal of an appeal from that order on 23 August 2002, why he is not precluded from obtaining in the proceedings instituted in the High Court, review of the Tribunal’s decision of 17 June 2002.  I shall adjourn the hearing of the appeal to 11 April 2005 when I shall receive submissions from the parties on that question and generally as to the disposition of the appeal from the Federal Magistrates Court.  There will be no order as to the costs of the hearing on 10 June 2004.

Associate:

Dated:              17 March 2005