FEDERAL COURT OF AUSTRALIA

MZWJA v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 492

PRACTICE & PROCEDURE –application for extension of time in which to file an application for leave to appeal against a decision of the Federal Magistrates Court – need for ‘special reasons’ – application for leave to appeal interlocutory decision.

Federal Court Rules O 52 r 15(1)(a)(ii) and O 3 r 3(1) and r 3(2)

Applicants 42/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 207 referred to

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

Jess v Scott (1986) 12 FCR 187 followed

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 referred to

QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 referred to

SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 followed

SZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 283 referred to

SZELL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 457 referred to

MZWJA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 285 of 2005

CRENNAN J

27 APRIL 2005

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY REITHMULLER FM

THE COURT ORDERS THAT:

1.         Application to extend the time within which to apply for leave to appeal be granted.

2.         Application for leave to appeal be dismissed.

3.         The applicant to pay the respondent's costs.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY REITHMULLER FM

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal, and for an extension of time in which to seek leave to appeal, from a decision of the Federal Magistrates Court (‘FMC’).

2                     The applicant is a citizen of India of Sikh ethnicity and has been living in the Punjab region since 1947.  He arrived in Australia in 1993 and applied for a protection visa on the ground that he risked persecution if he returned to the Punjab on account of his political involvement.  The Minister’s delegate refused the applicant’s claim for protection.  The applicant then sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal affirmed the decision of the Minister’s delegate on 11 June 1996. 

3                     The applicant was ‘joined in’ the ‘representative proceedings’ decided by the High Court of Australia in August 2002 in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin’).  The matter was then remitted to this Court and the applicant, and his wife, brought a draft Order nisi under s 39B of the Judiciary Act 1903 (Cth) for constitutional writs in respect of the Tribunal’s decision.  By decision dated 5 July 2004 his Honour Emmett J refused to grant any Order nisi however, his Honour left open the question of whether the applicant could proceed on grounds different from those set out in the Muin decision. 

4                     The applicant filed a second application for review of the Tribunal’s decision on 25 May 2004 again seeking Orders nisi for constitutional writs.  The application was remitted to the FMC.  On 20 October 2004 Registrar Connard made certain orders including an order that the applicant file and serve an amended application with proper particulars.  The applicant did not comply with those orders.  The respondent then brought an application for summary dismissal of the FMC proceeding for failure to comply with the orders made by Registrar Connard (Federal Magistrates Court Rules O 13 r 3). 

5                     His Honour Reithmuller FM dismissed the applicant’s application on 2 March 2005 and acceded to the respondent’s application.  His Honour made the following orders:

‘1.        The applicant’s application filed 25 May 2004 be dismissed; and

2.         The applicant to pay the respondent’s costs fixed in the sum of $2500.00.’

6                     The applicant has filed a draft notice of appeal, an application for leave to appeal and an application for extension of time within which to file and serve a notice of appeal.  The applicant is unrepresented in the proceedings before this court.

7                     The applicant attended today with an interpreter.  When given an opportunity to address the court, the applicant said through the interpreter that he should be allowed to stay here, and also stated “the government may change the law and grant [him] asylum.”  Therefore, the applicant said, he wanted more time.

8                     There is ample authority in this Court for the proposition that a summary dismissal of a proceeding is interlocutory for the purposes of appeal rights: see Lindgren J in SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [6] (‘SZDGN’) and see also the cases there cited; Applicants 42/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 207 (Jacobson J); SZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 283 at [21] – [23] (Madgwick J) and SZELL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 457 at [3] (Hely J).

9                     Following the decision of Lindgren J in SZDGN at [9], to the extent that the applicant requires leave because the Federal Magistrates Court's decision is interlocutory, the implied time limit for applying for leave is 21 days and that time may be extended (Federal Court Rules O 52 r15(1)(a)(ii) and O 3 r 3(1) and r 3(2)) 

10                  On the occasion of filing the draft notice of appeal, the respondent submitted that the applicant did not also file an application for leave to appeal, and accordingly he requires an extension of time within which to file an application for the grant of leave.  The relevant date for filing of the application for leave to appeal was 23 March 2005, and the applicant is making the application for leave on notice, having applied for leave on 6 April 2005.

11                  The principles to be applied in considering whether to grant an extension of time are set out in Jess v Scott (1986) 12 FCR 187 (‘Jess v Scott’); see also QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9.  Having regard to the short delay in relation to the filing of the application for leave and having regard to the fact that the applicant is appearing for himself, I propose to extend the time for making the application for the grant of leave until 6 April 2005. 

12                  The principles to be applied in considering whether leave should be granted to appeal from an interlocutory decision are those stated by the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 (‘Décor v Dart’).  The draft notice of appeal does not provide any grounds for review, but rather states that the applicant will ‘be politically persecuted if returned to India’, and he feels like ‘he belongs in Australia’.  No particulars of any grounds for review are provided.  The failure to provide any particulars of any grounds for review arises in circumstances where the federal magistrate had found that on the material before him, he was not able to identify ‘any prima facie case or arguable ground that the applicant has to pursue’.

13                  In all the circumstances and having heard from the applicant and applying the principles in Décor v Dart, the applicant has not made out proper grounds for the grant of leave as required.  Accordingly the application for leave is refused with costs.

Associate:

Dated:              27 April 2005