Applicant M1039 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 130 (14 May 2004)

Last Updated: 31 May 2004

FEDERAL COURT OF AUSTRALIA

Applicant M1039 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 130

APPLICANT M1039 OF 2003 v MINISTER FOR IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS
V 1168 OF 2003




BLACK CJ, SUNDBERG and HELY JJ
14 MAY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1168 OF 2003

Application for leave to appeal from a decision of a Judge of the Federal Court

BETWEEN:	APPLICANT M1039 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	BLACK CJ, SUNDBERG and HELY JJ
DATE OF ORDER:	14 MAY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for an extension of time for leave to appeal be dismissed.
2. The application for leave to appeal be dismissed.
3. The applicant pay the respondent’s costs of the application.

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	V 1168 OF 2003

Application for leave to appeal from a decision of a Judge of the Federal Court

BETWEEN:	APPLICANT M1039 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	BLACK CJ, SUNDBERG and HELY JJ
DATE:	14 MAY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The applicant applied to the High Court for orders nisi in respect of a decision of the Refugee Review Tribunal affirming a decision of the respondent’s delegate to refuse a protection visa. The proceeding was remitted to this Court, and was heard by Merkel J. The applicant appeared in person. His Honour put to him that he had already applied for review of the Tribunal’s decision, and that had been dismissed by Ryan J: Vassiliev v Minister for Immigration & Multicultural Affairs [2001] FCA 424. The applicant agreed. His Honour said he was not able to rehear the matter. All he could do was to identify some new ground "and you don’t seem to have one". The applicant agreed that he did not. Merkel J then said:

"I am of the view that it is appropriate that the order number 1 of Marshall J of 20 October be vacated and that I order under order 51 rule 5 subrule (2) that ... rule (1) not apply. In the result the matter comes before me as an application for an order nisi.

In the present case the applicant has quite frankly indicated that the ground for his complaint is that he felt the tribunal had not properly understood his claim for persecution and had treated what he claimed to be persecution as mere inconvenience. This is a case where there was a challenge to the decision of the tribunal and grounds of the kind that the applicant has raised before me were considered by Ryan J, who refused the application for review in a decision of 10 April 2001. The applicant has quite frankly admitted before me that he does not have any other basis for complaint that he is able to articulate. It seems to me the proper way to proceed is to refuse the application for order nisi ..., treating it as an interlocutory application."

His Honour ordered that the applicant pay the respondent’s costs.

2 On 30 December 2003 the applicant filed a Notice of Appeal. The grounds of appeal are that the primary judge did not give reasons for dismissing the application and failed to accord him procedural fairness. Merkel J’s order refusing the application was an interlocutory order: NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297. Accordingly leave to appeal is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976. On 10 February 2004 Black CJ ordered that the applicant file any application for leave to appeal and any application for an extension of time for leave to appeal by 4 March 2004. His Honour also ordered that any application for leave be accompanied by a Notice of Appeal "stating precisely and specifically the grounds of appeal to be relied on, including full particulars of those grounds". Orders were also made for the filing of outlines of submissions. The applicant then applied for leave to appeal and for an extension of time. No affidavit in support of the applications has been filed. No draft Notice of Appeal has been filed pursuant to the Chief Justice’s order though, as we have said, the applicant purported to file an unparticularised Notice of Appeal at an earlier stage.

3 There being no material to support the grant of an extension of time for leave to appeal, and no appearance by the applicant to pursue his case, that application must be dismissed. Had we extended the time, we would have dismissed the application for leave to appeal. Merkel J’s decision is not attended with doubt such as to warrant its reconsideration by the Full Court. Indeed we think it is not attended by any doubt at all. There is no substance to the claims that his Honour gave no reasons for dismissing the application and that he failed to accord the applicant procedural fairness. No particulars of the latter claim have been provided despite the Chief Justice’s order to that effect. In determining whether to grant leave it is also necessary to consider whether substantial injustice would result if leave were refused, supposing the Judge’s decision to be wrong. As was said in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 399, the "doubt" and "injustice" questions bear upon each other. In view of the absence of any prospect of success on appeal, we would not have been satisfied that substantial injustice would result from a refusal of leave.

4 The respondent has contended that an extension of time and leave to appeal should be refused on grounds additional to those we have relied on. What we have said is sufficient to dispose of the matter, and we need not consider these further grounds.

5 The application for an extension of time in which to appeal is dismissed, as is the application for leave to appeal. The applicant must pay the respondent’s costs of the applications.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and Justices Sundberg and Hely.

Associate:

Dated: 14 May 2004

The applicant did not appear.

Counsel for the Respondent:	C Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 May 2004
Date of Judgment:	14 May 2004