Dranichnikov v Minister for Immigration & Multicultural Affairs [2001] FCA 199 (2 March 2001)

Last Updated: 9 March 2001

FEDERAL COURT OF AUSTRALIA

Dranichnikov v Minister for Immigration & Multicultural Affairs

[2001] FCA 199

OLGA DRANICHNIKOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, MS RYNEETE GAULT in her capacity as an officer of the Department of Immigration and Multicultural Affairs AND MR KEVIN DUFFY in his capacity as an officer of the Department of Immigration and Multicultural Affairs

Q 36 OF 2001

DRUMMOND J

BRISBANE

2 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 36 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	OLGA DRANICHNIKOV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT MS RYNEETE GAULT in her capacity as an officer of the Department of Immigration and Multicultural Affairs SECOND RESPONDENT MR KEVIN DUFFY in his capacity as an officer of the Department of Immigration and Multicultural Affairs THIRD RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	2 MARCH 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The applicant's notice of motion filed on 23 February 2001 be dismissed.

2. The applicant pay the first respondent's costs of and incidental to today's hearing of the notice of motion filed 23 February 2001.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 36 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	OLGA DRANICHNIKOV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT MS RYNEETE GAULT in her capacity as an officer of the Department of Immigration and Multicultural Affairs SECOND RESPONDENT MR KEVIN DUFFY in his capacity as an officer of the Department of Immigration and Multicultural Affairs THIRD RESPONDENT

JUDGE:	DRUMMOND J
DATE:	2 MARCH 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 I have before me a motion by Mrs Dranichnikov, whom I will call the applicant, who appears for herself assisted by an interpreter, for leave to appeal a direction given by Spender J on 21 February 2001 that the applicant's appeal against a decision of Dowsett J be listed for the sittings of the Full Court appointed to commence in Brisbane on 14 May 2001. The direction the subject of the application for leave to appeal is not only interlocutory but is confined to a matter of practice and procedure. It is not a direction which deprives the applicant of any legal rights; it merely requires her to be ready to present her appeal at the sittings commencing on 14 May in circumstances where she opposed the appeal being set down at that particular sittings to the intent that it should go over to a subsequent sittings in a Full Court.

2 The principles upon which leave to appeal interlocutory orders generally is granted are well established. See The Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, where it was said that the test to be satisfied is whether the decision at first instance was attended with sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision at first instance was wrong. There is, in addition, a particular burden on an applicant for leave to appeal an interlocutory decision confined to a matter of practice, as is this decision.

3 On 29 January 2001, Dowsett J gave the judgment the subject of the applicant's pending appeal. The issue for his determination was confined to whether the applicant had previously made an application for a protection visa which had been refused. His Honour determined by reference to an application for a protection visa earlier made by the applicant's husband, which extended to her, that she did come within that description and, accordingly, under the relevant provisions of the Migration Act 1958 (Cth), her application, which had been rejected by the Minister, was invalid.

4 It is from that decision by Dowsett J refusing to review the decision of the Minister that the applicant filed her notice of appeal on 15 February 2001. Six days later she attended at the callover in accordance with a direction received from the Registry. She opposed the appeal being set down by Spender J for the sittings commencing 14 May on a number of grounds. Those grounds have been re-agitated before me.

5 The first objection the applicant makes to the direction listing her appeal at the May sittings is based upon the proposition that she was deprived of her legal rights because Spender J is said to have departed from the practice of the Court in listing her appeal at the callover which he held on 21 February. Her point is that, in accordance with what she says is the practice of the Court, her appeal should not have been called over on 21 February for the May sittings of the Full Court, but should only have been included in the callover list, at the earliest, for the September sittings of the Court.

6 The proposition that Spender J departed from the practice of the Court is not based on any assertion that his Honour failed to comply with the requirements of any rules for the Federal Court, nor is it based on any suggestion that he failed to comply with the procedures set out in Practice Note No 1, relating to appeals to the Full Court. The foundation for this complaint of departure from practice is to be found in an information sheet available to litigants in the Federal Court Registries around Australia and also on the world wide web. Under the heading "Court Lists and Sittings, Full Court Sittings 2001", litigants are given the following information with respect to callovers:

"A Judge in each state conducts a Full Court callover in which the readiness for hearing, estimated duration for hearing of the appeal, counsel availability, and other details are recorded."

7 The information sheet goes on to state:

"The usual cut-off date for the inclusion of cases in the callover is seven days prior to the callover. Appeals outside that time wishing to be heard in the nearest sitting period should be accompanied by an application for an urgent hearing ..."

8 There is, in my opinion, no substance in the applicant's complaint that she was denied her legal rights by the direction given by Spender J. What his Honour did, and this is not disputed by the present applicant, was hear submissions from her as to why her appeal should not be brought on at the May sittings, but should be deferred to a later sittings. He set the appeal down after determining that what was said by the applicant did not warrant sending her appeal to the next callover.

9 That was a completely proper course for Spender J sitting as a callover judge to follow. The information sheet does not contain any legal rule; it goes no further than providing general information for litigants involved in appeals to the Full Court. His Honour was under no obligation in law to comply with that practice. There was no reason in law why he was prevented from following the course he did and going on to list the appeal for the May sittings. The issue raised by the applicant for the callover judge's determination was whether the appeal could be got ready without prejudice to the applicant or the respondent for the May sittings.

10 The other complaints made by the present applicant in support of her application for leave to appeal Spender J's direction turn firstly on what is said to be a misuse by his Honour of certain medical information the applicant put before him in support of her submissions that the appeal should be deferred until after May. It appears that his Honour had regard to the medical report and, taking note of a comment by the applicant's medical adviser to the effect that the length of time involved in the appeal process has contributed to the level of stress of both the applicant and her husband, took the view that there was no medical reason to justify deferring the appeal. It seems to me that given the task that the applicant has to show that there is a sufficient doubt about the direction given by Spender J to warrant leave to appeal being given, and given that what is at issue is an appeal from a very broad discretion to give directions as to practice and the conduct of litigation in the Court, there is no possible basis for thinking that his Honour's discretion miscarried by reason of the use he made of the medical information.

11 The other heads of complaint that the applicant wishes to raise in support of her application for leave can compendiously be described as allegations that Spender J was biased against her.

12 She refers to directions given for what she says was the accelerated hearing of her husband's appeal by Spender J in March 2000 in relation to another migration matter. That goes nowhere near laying a proper foundation to assert that a judge is biased. She also refers to a range of other matters which seem to me to be mere speculation. It is perhaps understandable that a litigant in the applicant's position who sees herself as having a great deal at stake in the litigation should be prepared to speculate and see grounds for suspicion as to the impartiality of a judge. It further appears that no protest was made by the applicant to Spender J dealing with her appeal at the callover: her speculations as to his Honour being biased only came after the event.

13 Before there is any ground for suggesting that a judge should not deal with a matter, there must be evidence giving rise to at least the perception of bias in the mind of a reasonable observer. There is nothing before me capable of raising such a perception about the way Spender J dealt with the applicant's request to postpone her appeal.

14 The question whether the applicant would suffer substantial injustice if leave to appeal Spender J's direction were refused, supposing his direction was wrong or he was wrong in giving that direction, must be answered adversely to the applicant. When asked how long she needed to prepare her appeal she said she would need a minimum of three months. The sittings do not start until mid-May. She will have almost the whole of that period in any event to prepare for her case. Nothing before me lends the slightest support for the suggestion that she will suffer any prejudice by being brought on two weeks, at most, before she herself says she will be ready to proceed with the appeal.

15 In my opinion, there is no substance in the grounds put forward in support of the application to appeal Spender J's direction and the motion will be dismissed.

16 I can see no reason why the ordinary rule as to costs should not apply. The applicant said that she and her husband had been deprived of the right to work by action taken by the Minister. That was the position once but it is now accepted that the Minister has, for one reason or another, acted to restore to them the right to work. The entitlement to access to the courts under the Convention Relating to the Status of Refugees 28 July 1951, as amended by the Protocol Relating to the Status of Refugees 31 January 1966, is one which the applicant has had afforded to her. In addition, she is not in the position of a person coming before the Court for the first time. She has already presented her case to a judge of the Court and has the opinion of that judge. What is before the Court now is appeal proceedings.

17 I will therefore order that the applicant pay the first respondent's costs of and incidental to the notice of motion for leave to appeal Spender J's direction of 21 February 2001.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 6 March 2001

Counsel for the Applicant:	The applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 March 2001
Date of Judgment:	2 March 2001