FEDERAL COURT OF AUSTRALIA

MZWRW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1665

MZWRW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 1238 OF 2005

RYAN J

4 december 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The first respondent’s objection to the competency of the appeal be upheld.

2.                  The appeal be dismissed.

3.                  The appellant pay the first respondent’s costs of the appeal, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     The first respondent (“the Minister”) has raised an objection to the competency of the appeal by the appellant against orders of McInnis FM on 3 October 2005, dismissing an application to set aside orders which had been made by the Federal Magistrates Court on 19 August 2005. 

2                     By way of background, the appellant, a Sri Lankan citizen, first arrived in Australia on 27 May 1997 on a student visa, and, on 29 January 1999, returned to Sri Lanka due to the illness of his father.  He came back to Australia on 1 March 1999, and, on 12 November 2003, lodged an application for a protection visa.  The application was refused by a delegate of the Minister on 10 April 2004 and that refusal was affirmed by the Refugee Review Tribunal (“the Tribunal”) in a decision handed down on 10 September 2004.  On 15 October 2004, the appellant filed an application in the Federal Magistrates Court for judicial review of the Tribunal’s decision.  That application was listed for hearing on 19 August 2005 before McInnis FM. 

3                     On 19 August 2005, the appellant failed to appear at the hearing, and his Honour, pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001, dismissed for non-appearance the application for review.  On 7 September 2005 the appellant applied to the Federal Magistrates Court to set aside the orders which had been made by McInnis FM on 19 August 2005. 

4                     In ex tempore reasons for judgment given at the end of the hearing on 3 October 2005, McInnis FM noted that the original application had been listed by the Registrar for hearing on 19 August 2005, and that the appellant had been given eight months in which to prepare his case.  His Honour further regarded as inadequate the appellant’s evidence on affidavit by way of explaining his non-attendance at the hearing on 19 August 2005.  That evidence consisted only of these paragraphs;

‘1.        I was sick and I did not attend the hearing on 19^th August 2005.

2.         I humbly request the court to set aside the decision of the 19^th August 2005 and return my case back to the RRT.’

5                     McInnis FM received oral evidence from the appellant, but remained unsatisfied that he had demonstrated a valid reason for his non-attendance at the hearing.  His Honour noted that it is usual, in such a case, for corroborative evidence to be adduced in support of the claimed illness.  In the absence of any evidence of that kind, and in the light of the appellant’s failure to attempt to contact the Court on 19 August 2005, his Honour declined to set aside the order of that date noting that, in any event, the Tribunal’s decision of 10 September 2004 did not appear to have been affected by any jurisdictional error.

6                     By notice of appeal filed in this Court on 10 October 2005, the appellant sought to appeal from the orders of McInnis FM made on 3 October 2005, which were explained in reasons published under the name MZWRW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1493.  The notice of appeal was accompanied by an affidavit of the appellant, which repeats the grounds and orders sought in the notice of appeal.  The appellant’s grounds of appeal are as follows;

‘1.        I disagree with the decision of the Federal Magistrate because that the decision was made with mistake of law.

2.         I believe that the court did not consider my claims accordance with the refugee law.

3.         I also believe that the Tribunal and the Court failed to give proper consideration of my claim.

4.         I will provide more details as soon as I receive the reason for the decision of my case dated 3^rd October 2005 from Federal Magistrate McInnis.’

7                     The orders sought by the appellant are as follows;

‘1.        An order to set aside the decision of the Federal Magistrate dated 3^rd October 2005.

2.         To return my case to RRT for further consideration by different member.

3.         My cost.’

The Minister’s submissions that the appeal is incompetent

8                     On behalf of the Minister, it was submitted that the appeal instituted by notice dated 10 October 2005 should be dismissed as incompetent because it was from an interlocutory judgment, and no leave to appeal has been obtained.

The orders below were interlocutory

9                     Ms Ngo who appeared for the Minister contended that the order of McInnis FM dismissing the application to set aside his decision of 19 August 2005 was interlocutory because it did not finally determine the rights of the parties.  She referred in this context to Licul v Corney (1976) 180 CLR 213, at 225;  Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246, at 248 and NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 659.  Reference was then made to s 24(1A) of the Federal Court of Australia Act 1976 (“the Act”) which provides that an appeal shall not be brought from an interlocutory judgment of the Federal Magistrates Court unless the Court or a Judge gives leave to appeal.  It was said to follow that, as the appellant had not sought, nor been granted, leave to appeal, the appeal is incompetent;  see Minogue v Williams (2000) 60 ALD 366, at 371 [18].

Extension of time

10                  The Minister contends that the appellant has failed to make an application for leave to appeal as required by O 52 r 5 of the Rules of this Court, within 21 days after the judgment of McInnis FM, and would, therefore, need first to make an application for an extension of time in which to seek leave to appeal;  see Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435, where Merkel J, with whom Finn and Stone JJ  agreed, observed, at 440 [19];

‘In determining whether to extend time, regard is usually to be had to the history of the proceeding; the conduct of the parties; the nature of the litigation; the consequences to the parties of the grant or refusal of any extension; and the prospects of success if the extension is granted.’

According to the Minister, if an application for an extension of time were made, it should be refused because of the appellant’s failure to prosecute his application for review in the Federal Magistrates Court and to attend the hearing.

11                  Moreover, so the Minister’s argument proceeded, the proposed appeal would, for several reasons, have no prospects of success even if an extension of time were granted.  First, the notice of appeal raises no arguable ground for consideration.  Secondly, no appealable error can be discerned in the decision of McInnis FM to dismiss the appellant’s application to set aside the orders of 19 August 2005.  Reference was made in this regard to the absence of any evidence to corroborate the claim that the appellant had been too sick to attend the hearing on 19 August 2005;  see NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 and NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559.  Thirdly, no error had been demonstrated in the learned Federal Magistrate’s conclusion that the Tribunal’s decision seemed unaffected by jurisdictional error because the Tribunal’s findings of fact were matters solely for the Tribunal and not amenable to judicial review;  NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167, at [9].

Leave to appeal

12                  The final argument advanced on behalf of the Minister was that, even if an extension of time were granted to allow the appellant to seek leave to appeal, the second limb of the test in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 could not be satisfied.  In that case, a Full Court of this Court approved, at 398-399, the distillation by Burchett J of the principles enunciated in Niemann v Electronic Industries Ltd [1978] VR 431 as governing applications for leave to appeal.  The Full Court went on to say, at 398;

‘The first test, which relates to the prospects of the proposed appeal, is “whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court.”  The second

“is whether substantial injustice would result if leave were refused, supposing the decision to be wrong .”’

Reasoning on the objection to competency

13                  By her notice of objection to competency dated 21 October 2005, the Minister has contended;

‘1.        The judgment of the Honourable Federal Magistrate McInnis handed down on 3 October 2005 is an interlocutory judgment;

2.         Pursuant to s.24(1A) of the Federal Court of Australia Act 1976 (Cth) an appeal cannot be brought from a judgment of the Federal Magistrates Court that is an interlocutory judgment unless the Court or a Judge gives leave to appeal; and 

3.         No such leave has been sought or obtained.’

14                  The notice of appeal filed by the appellant on 10 October 2005 purports to appeal from the whole of the judgment of McInnis FM, given on 3 October 2005.  Section 24(1) of the Act confers on this Court jurisdiction to hear and determine appeals that are brought from the Federal Magistrates Court.  Pursuant to s 24(1A) of the Act, an appeal shall not be brought to this Court from a judgment that is an interlocutory judgment of the Federal Magistrates Court, unless the Court or a Judge gives leave to appeal.  Whether a judgment is final, as distinct from interlocutory, depends on whether the judgment determines the final rights of the parties to the proceedings;  Licul v Corney (1976) 180 CLR 214, at 225;  Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246, at 248.  As was pointed out by a Full Court of this Court in Brouwer v Titan Corporation Ltd (1997) 73 FCR 241, at 242;

‘In applying this test, the court must have regard to the legal, rather than the practical effect of the judgment, so that the question is whether the judgment finally determines, in a legal sense, all the rights of the parties that are in issue in the proceedings …’

15                  Although McInnis FM dismissed the appellant’s application to set aside the orders of 19 August 2005 because the appellant had failed to adduce evidence substantiating his claim that he had been prevented by illness from attending the hearing on that date, that judgment did not, in a legal sense, determine the substantive claims of the appellant;

‘[A]n order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only.’

See Hall v Nominal Defendant (1066) 117 CLR 423, at 440 per Taylor J. 

16                  Applying this test, the orders of the 3 October 2005 judgment were interlocutory:  see NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 659, at [15] per Hely J.

17                  Where a party applies for leave to appeal, the application must be made within 21 days after the judgment was pronounced;  O 52 r 5 of the Federal Court Rules.  The appellant has not applied for leave to appeal, and, necessarily, has not made such an application within the time prescribed by O 52 r 5.  It follows that, if the appellant were to seek leave to appeal, he would first need to apply for an extension of time in which to seek leave to appeal.  The Court might have excused the appellant’s failure to seek leave to appeal within 21 days of the Orders of 3 October 2005, given his obvious lack of knowledge and understanding of the requirements of the Rules of this Court.  However, even if a valid excuse can be found for delay in applying for leave to appeal, an extension of time must still be refused if the appeal would have no, or very slight, prospects of success;  see Gallo v Dawson (No 2) (1992) 109 ALR 319.   There is nothing on the face of the notice of appeal and supporting affidavit which identifies an error of law in the decision of McInnis FM of 3 October 2005.  Nor does the appellant appear to have an arguable case that the decision of the Tribunal, of which he seeks judicial review, was affected by jurisdictional error. Further, the criteria identified by Merkel J in Herald & Weekly Times Ltd v Williams (supra) are adverse to the grant of an extension of time.  In the present case, the history reveals that the appellant has failed effectively to prosecute his application to the Federal Magistrates Court, failed to attend the hearing before McInnis FM on 19 August 2005, and, at the subsequent application to set aside the orders made on that day, failed to provide adequate evidence in support of his application.  The appellant did not present a medical certificate, or any evidence to similar effect.  Nor did he notify the Court or the solicitors for the Minister either before, or on the day of, the hearing that he would be unable to attend on 19 August 2005.  An extension of time should therefore be refused.

18                  Even if no extension of time were necessary, the appellant, to be granted leave to appeal, would have to satisfy the cumulative tests approved by the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc (supra).  The first of those tests requires that the decision below be attended with sufficient doubt to warrant its reconsideration on appeal.  That test has not been satisfied in this case so the enquiry ends there.  However, I observe in passing that I have not been persuaded, in the light of the interlocutory history, that substantial injustice would result if leave were refused, supposing the decision to be wrong.

Conclusion

19                  For the reasons outlined above, the objection to competency must be upheld.  The appeal will, accordingly, be dismissed, with costs.

Associate:

Dated:         4 December 2006