FEDERAL COURT OF AUSTRALIA

M154 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 255

M154 of 2002  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 583 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.         The appellant have leave, if so advised, to file and serve by 1 April 2005 a fresh or amended notice of appeal in lieu of the draft notice of appeal presently appearing on the Court file.

3.         That 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.

4.         The respondent’s costs of the hearing on 16 June 2004 be reserved.

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 30 April 2004.  The orders and his Honour’s reasons for them were, in all relevant respects, the same as those in M153 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 251 (V582 of 2004) in which I have also published my reasons today.  As in that case, the learned Federal Magistrate concluded that the present was “a clear case of res judicata” and dismissed the application. 

2                     When the present matter came before this Court on 16 June 2004, Ms Weavers, who appeared for the respondent Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) candidly acknowledged that, until shortly before the hearing commenced, she believed that the appellant was applying for leave to appeal.  However, for the reasons which I have explained in M153/2002, I have reached a clear view that the orders of Phipps FM of 30 April 2004 were final orders and were not merely interlocutory by way of declining to grant an order nisi. 

3                     It therefore follows that, although his application to this Court was in form an application for leave to appeal, the appellant had, on 6 May 2004 when that application was lodged, an appeal as of right.  It is, I consider, appropriate that he should have an opportunity to pursue that appeal.  The draft notice of appeal apparently filed in support of his misconceived application for leave to appeal is neither elegant nor informative and, if the appellant wishes to rely on an amended notice, he should file and serve such a document by 1 April 2005.  For the reasons which I explained in M153/2002, to have any prospect of success on the substantive appeal, the appellant will have to overcome the obstacle presented by the fact that his application for review of the decision of the Refugee Review Tribunal was rejected by Heerey J and that rejection was affirmed by a Full Court of this Court after a hearing at which the appellant was represented by Senior Counsel. 

4                     As I did in M153/2002, I shall adjourn the hearing of the appeal to 11 April 2005 when I shall receive submissions from the parties on the question which I have just identified and generally as to the disposition of the appeal from the Federal Magistrates Court.  I shall reserve liberty to either party to apply for further or other directions and there will be an order reserving the Minister’s costs of the hearing on 16 June 2004.

Associate:

Dated:              17 March 2005