Applicant M139 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 107 (5 May 2004)

Last Updated: 11 May 2004

FEDERAL COURT OF AUSTRALIA

Applicant M139 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 107

APPLICANT M139 of 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
V 1 of 2004




BLACK CJ, HEEREY AND BENNETT JJ
MELBOURNE
5 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1 OF 2004

BETWEEN:	APPLICANT M139 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS RESPONDENT
JUDGES:	BLACK CJ, HEEREY AND BENNETT JJ
DATE OF ORDER:	5 MAY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.	The application for an extension of time for leave to appeal and the application for leave to appeal be refused, with costs.
2.	The purported appeal be struck out as incompetent, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1 OF 2004

BETWEEN:	APPLICANT M139 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS RESPONDENT

JUDGES:	BLACK CJ, HEEREY AND BENNETT JJ
DATE:	5 MAY 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT
(Revised from transcript)

THE COURT:

1 This is an application for an extension of time to file and serve a notice of appeal and an application for leave to appeal. No doubt it was intended that if the applications were successful there would be an appeal against the decision of the primary judge dismissing the applicant’s application for orders nisi for prohibition and certiorari against the respondent Minister and against two members of the Refugee Review Tribunal (‘the Tribunal’).

2 The applicant is a citizen of Sri Lanka and France who applied for a protection visa on the ground that he fears his former wife will harm him if he returns to France or to Sri Lanka. The application for a protection visa was refused by a delegate of the respondent Minister.

3 The applicant sought a review of the decision in the Tribunal, but by letter dated 28 September 1999 requested the Tribunal to cancel the scheduled hearing. The applicant conceded that ‘it is very clear that [the claim] is not part of a Convention ground’. Accordingly, in a decision dated 15 October 1999 the Tribunal member, Mr Vrachnas, dismissed the application for review: RRT Reference V97/07528.

4 In September 2001 the applicant joined the Muin and Lie class action in the High Court of Australia (see Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601). Orders were made in that action by Gaudron J on 25 November 2002 granting leave to those who were part of that action to file an application for constitutional writs on or before 1 June 2003.

5 On 27 May 2003 the applicant made an application to the High Court for orders nisi for certiorari against Mr Vrachnas (and also against Mr Gentile, a Senior Member of the Tribunal). He sought prohibition against the two Tribunal members and against the respondent Minister to prevent them from proceeding with the matter which, however, had by then been concluded in the Tribunal. The several grounds set out the draft order nisi ranged from Wednesbury unreasonableness to bad faith on the part of the Tribunal.

6 By order of the High Court, the application was remitted to the Federal Court and on 9 October 2003, Marshall J made orders by consent requiring the applicant to file and serve on or before 3 November 2003 a statement of contentions of relevant facts and law setting out the particulars of the grounds relied upon and the reasons why any extensions of time should be granted. A further order was made that in the event that the order just mentioned was not complied with, ‘the applicant will be called upon ... to show cause why the matter should not stand dismissed’.

7 The applicant did subsequently file a document entitled ‘Contentions of Facts and Law’, but this merely asserted that the delegate of the respondent Minister had erred in deciding that the applicant was not a refugee under the 1951 Convention relating to the Status of Refugees. In relation to the decision of the Tribunal, it simply repeated the claims of miscellaneous errors of law set out in the original application for orders nisi.

8 On 17 December 2003 a directions hearing was held before Goldberg J, during the course of which his Honour, addressing the applicant, said:

... I think your application is misconceived because you accepted that you weren’t a refugee under the convention although you feared for your safety because of your former wife. ...

If you can’t point to any error that the tribunal made then I must dismiss your application. The Minister is asking me to do that today and I can see no reason why I should permit your case to continue because it is based upon a false foundation; that is, that you’re complaining about the tribunal making an error when it should have decided that you were a refugee under the convention when you accept that you are not.

Accordingly, his Honour dismissed the application for orders nisi, presumably acting pursuant to the power conferred by O 20 r 2(a) of the Federal Court Rules.

9 As his Honour’s decision was interlocutory in nature, leave to appeal was required (see NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 and s 24(1A) of the Federal Court of Australia Act 1976 (Cth)) and an application for leave to appeal ought to have been filed within seven days of the decision: O 52 r 10(2)(b) of the Federal Court Rules.

10 Instead, on 2 January 2004, the applicant filed a notice of appeal. In the notice, he claimed two grounds of jurisdictional error: error of law and a denial of natural justice. The particulars of the error of law ground state simply:

I disagree with the decision of His Honour that there is no reasonable course [sic] of action and I will provide detail[ed] particulars when I receive a copy of the decision of His Honour Justice Goldberg

11 There is before the Court today an application by the applicant for an order quashing or setting aside the decision of Goldberg J and an order remitting the matter to a differently constituted Tribunal for further consideration or, alternatively, an order that the applicant ‘be granted recognition as a Refugee and/or consequential necessary visas to enable her [sic] to remain in Australia’.

12 On 9 January 2004 the respondent Minister filed a notice of objection to competency of the appeal on the ground that no leave to appeal had been sought or obtained. The following day, at a callover, the Chief Justice ordered the applicant to file and serve any application for leave to appeal and any application for an extension of time for leave to appeal by no later than 11 March 2004. He also ordered that any such application set out a ‘precise and specific statement of the grounds of appeal on which the applicant wishes to rely if leave is granted.’

13 The applicant filed and served an application for extension of time to file and serve a notice of appeal and an application for leave to appeal on 2 March 2004. The application for leave to appeal states that the grounds of the application ‘appear in the annexed affidavit’ but no affidavit was annexed to the application.

14 The Minister therefore now submits that the applicant has not complied with the orders made on 10 January 2004 and seeks to have the present applications dismissed for want of prosecution: see Federal Court Rules (Cth) O 52 r 38(1)(a).

15 The applicant has not appeared today to advance his own applications or to oppose the Minister’s application for dismissal for incompetence. Consequently, the applicant has given no explanation for his failure to apply for leave to appeal within the required time. In any case – and importantly – there is no reason to suppose that the challenge he seeks to make to the orders of the primary judge has any merit at all. There is no occasion to exercise the various discretions that are available to the court to prevent the injustices that the strict application of the Rules might cause in some circumstances.

16 In these circumstances, therefore, the application for extension of time for leave to appeal must be refused with costs. The application for leave to appeal must also be refused with costs. The objection to the competency of the appeal purportedly commenced by the notice of appeal filed on 2 January 2004 must be upheld and the appeal struck out as incompetent, with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, their Honours Justice Heerey and Justice Bennett.

Associate:

Dated: 11 May 2004

Counsel for the Applicant:	The applicant did not appear
Counsel for the Respondent:	Dr S Donaghue
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 May 2004
Date of Judgment:	5 May 2004