FEDERAL COURT OF AUSTRALIA

S1555 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 957

S1555 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1027 OF 2005

STONE J

5 JULY 2005

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant has filed an application seeking leave to appeal and an extension of time to file a notice of appeal from a judgment of a Judge of this Court.  His Honour’s reasons are to be found at [2004] FCA 289. 

Background

2                     The applicant is a citizen of Pakistan who arrived in Australia on 19 April 1989.  On 5 August 1994, he lodged an application for the grant of refugee status with the Department of Immigration and Multicultural Affairs.  On 16 October 1996, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the applicant a protection visa and on 24 October 1996 the applicant sought review of that decision in the Refugee Review Tribunal (‘Tribunal’).

3                     It is sufficient to note that the applicant, a Mohajir, claimed to fear persecution from Pakistani authorities on account of his membership of a political movement, the Mohajir Quami Movement.  The Tribunal found that this fear was not well-founded and affirmed the decision of the delegate.

4                     In 1999, proceedings were commenced in the High Court of Australia by Mrs Lie, as prosecutor, against the Tribunal and the respondent (‘High Court proceedings’).  The applicant was joined to the High Court proceedings as a member of the class Mrs Lie sought to represent.  On 8 August 2002, the High Court handed down judgment in Lie v Refugee Review Tribunal (2002) 190 ALR 601.  While Mrs Lie represented a large number of people in the High Court proceedings, the judgment of the High Court was based on agreed facts and was limited to Mrs Lie.

5                     On 25 November 2002, Gaudron J granted leave to those persons named in the schedule to the statement of claim filed in the High Court proceedings, of which the applicant was one such person, to file an application in the High Court seeking an order nisi in relation to the relevant decision of the Tribunal.  Her Honour further ordered that, pursuant to s 44 of the Judiciary Act 1903 (Cth), any application filed pursuant to the above leave be remitted instanter to this Court in accordance with the usual terms of the remitter.

6                     The applicant filed an application for an order nisi in the High Court on 29 May 2003.  Pursuant to the orders of Gaudron J, the application was immediately remitted to this Court.  The applicant’s application, and those of a significant number of other persons named in the schedule to the statement of claim in the High Court proceedings, came before Emmett J for directions on 20 February 2004.  The large group of applicants before his Honour on this date were represented by counsel.  While it is unclear whether counsel had specific instructions to continue to act for the applicant at this time, for convenience I shall refer to counsel as ‘counsel for the applicant’.  His Honour described the applications before him at [17]-[18] of his judgment:

‘The applications that were filed in May and June, which were remitted to this Court, are in virtually identical terms. In the present case, they consist of an affidavit by Mr Joel [solicitor for the applicants] annexing copies of the reasons of the delegate and the reasons of the Tribunal in relation to the applicant, coupled with a draft order nisi.  Mr Joel’s affidavits in each matter also state whether or not the particular applicant was a represented party in the Lie proceeding or the Muin proceeding.  

The form of draft order nisi filed in each case is in the form of an order that the Tribunal and the Minister show cause why, in respect of the Tribunal’s decision, prerogative writ relief should not be granted, together with an order that there be an enlargement of time to permit the relevant applicant to commence proceedings for that relief.  The ground for the relief are simply:

‘The first respondent [the Tribunal] failed to accord the prosecutor procedural fairness.’

No further particulars are given in the affidavits or in the draft orders nisi of the alleged denial of procedural fairness.’

7                     His Honour continued at [20]-22] of his reasons:

‘…To obtain an order nisi, an applicant must show that he or she has at least an arguable case that the Tribunal, whose proceedings are called into question, has erred in a manner that would justify final relief by way of an order absolute.  Therefore, the affidavit should set out concisely the factual background to the proceedings, the issues that arose between the parties before the Tribunal, the grounds of complaint in respect of the decision and the reasons why those grounds are sufficient to justify the granting of an order nisi. 

…

It is patent that the material filed in this proceeding and each of the other similar proceedings does not demonstrate an arguable case for the grant of any relief.  There is a bald assertion that the Tribunal failed to accord the applicant procedural fairness, coupled with the reference to either the Lie or the Muin proceeding in which generalised assertions are made, but in respect of which no particulars are furnished.  It is fair to say that counsel for the applicants in all of the proceedings currently before the Court, did not contend that this Court would entertain an application for an order nisi on the basis of the material filed in any of the proceedings.’

8                     At the same directions hearing before Emmett J, counsel for the applicant also sought orders requiring the respondent to provide discovery of certain documents.  Emmett J refused this application stating at [25] that:

‘In effect, the applicant is seeking an indulgence, both from the Court and from the Minister, to enable him to formulate an arguable case for relief.  In the absence of any submission as to why the Minister should be ordered by the Court to furnish documents to which the applicant has no entitlement, I do not consider it appropriate to make the direction sought by the applicant.’

9                     His Honour held that there was no good reason advanced why he should compel the respondent to provide the documents sought.  As it was common ground that, in the absence of the requested documents, no arguable case could be demonstrated, Emmett J ordered that in each case the order nisi should be refused.

This present application

10                  As noted above, the applicant has filed an application seeking leave to appeal and an extension of time to file a notice of appeal from the judgment of Emmett J. 

11                  His Honour’s order refusing the order nisi was clearly interlocutory in nature.  Emmett J himself expressly noted this at [28] of his judgment.  As such, O 52 r 10(b) of the Federal Court Rules requires that an application for leave to appeal from an interlocutory judgment of this Court be filed and served within seven days of the pronouncement of the judgment, ‘or within such further time as the Court or a Judge may allow’.  The applicant filed the present application on 22 June 2005; that is, over one year outside the time required by this provision.  Consequently, the applicant requires not only leave to appeal but also an extension of time in which to seek leave.  He does not need to apply separately for an extension of time to file a notice of appeal.  If leave to appeal were to be granted the applicant, by virtue of O 52 r 15 (a)(ii) would have 21 days within which to file a notice of appeal.  Therefore I propose to treat the application before the Court as an application for leave as well as an application for an extension of time to seek leave.

12                  In considering such an application the Court takes into account the reason for the delay that necessitates an extension of time as well as the prospects of success in any appeal brought pursuant to a grant of leave;  see generally Deighton v Telstra Corporation Ltd [1997] FCA 1568; Kalaba v The Queen [1996] FCA 908; Jess v Scott (1986) 12 FCR 187; Australian Prudential Regulation Authority v Holloway [2001] FCA 1240; Howard v Australian Electoral Commission [2000] FCA 1767; and Cottrell v Wilcox [2003] FCA 600.

13                  In the present case, the applicant has asserted that he was unaware of the time limit in which he was required to file a notice of appeal.  Even if I accept that this provides a satisfactory explanation for the delay of more than a year in filing the present application, which I do not, I am of the view that it would be futile to grant leave as the prospect of an appeal in this matter succeeding is negligible.

14                  While the terms of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) confer an unfettered discretion in respect of the granting of leave to appeal, in the ‘general run of cases’, leave will be granted when, in all the circumstances, the decision is attended by sufficient doubt to warrant reconsideration and, assuming the decision to be wrong, substantial injustice would result if leave were refused: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 

15                  In my opinion, Emmett J was clearly correct to refuse the applicant’s order nisi.  The applicant did not establish an arguable case before his Honour.  To the extent that the applicant seeks to challenge the refusal of Emmett J to make orders compelling the respondent to discover documents, I reject such a challenge.  Given that counsel for the applicant did not provide any good reason why the respondent should be compelled to make the discovery sought, his Honour’s refusal to make orders would seem to be correct.  At the hearing of this application no error in his Honour’s approach has been identified.

16                  I should note for the benefit of the applicant that this is not a case where the decision of Emmett J, although interlocutory in nature, has the practical effect of determining the applicant’s claim to relief in respect of the Tribunal’s decision: see Johnston v Cameron (2002) 124 FCR 160 per Branson J at [8].  As Emmett J stated at [28] of his judgment, in reference to the potential consequences of an order refusing the order nisi:

‘The first possible prejudice adverted to was the suggestion that, the applicant, if an order nisi were refused at this stage, would be barred from relief by the principles of res judicata, issue estoppel or Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589), even if he were subsequently able to demonstrate an arguable case.  I do not see any substance in that expressed concern.  An order refusing an order nisi is clearly an interlocutory order.  As such it would not foundany bar or estoppel against appropriate relief if grounds are established. Further, the Minister has assured the Court that there would be no submission made on behalf of the Minister, in relation to this application or any of the other applicants presently before me, that the refusal of an order nisi would constituted a bar to the commencement of a fresh proceeding claiming the same relief.’

17                  As this statement makes clear, his Honour’s refusal of the order nisi does not, in itself, present an obstacle to the applicant in the present case commencing new proceedings seeking judicial review of the Tribunal’s decision.  In saying this I make no comment about other obstacles that may or may not exist, especially in view of the time that has elapsed since the Tribunal’s decision.

18                  For these reasons the application must be dismissed with costs.

Associate:

Dated:              12 July 2005