Applicant M171/2003 v Minister for Immigration & Multicultural& Indigenous Affairs [2004] FCAFC 220 (24 August 2004)

Last Updated: 24 August 2004

FEDERAL COURT OF AUSTRALIA

Applicant M171/2003 v Minister for Immigration & Multicultural &
Indigenous Affairs [2004] FCAFC 220

PRACTICE AND PROCEDURE – order nisi refused by primary judge – no arguable case disclosed – order of primary judge that O 51A r 5(1) not apply – interlocutory decision – whether primary judge entitled to refuse order nisi – whether primary judge entitled to refuse to adjourn application for order nisi – whether no miscarriage of discretionary powers by primary judge


Migration Act 1958 (Cth) ss 474, 477
Freedom of Information Act 1982 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 24(1), 24(1A)


Federal Court Rules O 51A rr 5(1), (2) and (3)


Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 referred to
Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 2; (2003) 211 CLR 476 referred to
Sullivan v Department of Transport (1978) 20 ALR 323 referred to
















APPLICANT M171/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
V 1151 OF 2003

GRAY, MOORE AND EMMETT JJ
24 AUGUST 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1151 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT M171/2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	GRAY, MOORE AND EMMETT JJ
DATE OF ORDER:	24 AUGUST 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The applicant be granted an extension of time to seek leave to appeal.

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 1151 of 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT M171/2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	GRAY, MOORE AND EMMETT JJ
DATE:	24 AUGUST 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

GRAY J:

1 The appellant in this proceeding is a citizen of Pakistan. On 31 January 1997, he arrived in Australia as the holder of a student visa, granted pursuant to the Migration Act 1958 (Cth) (‘the Migration Act’). It was not until 2 July 1998 that the appellant lodged an application for a protection visa, pursuant to the Migration Act. His application was refused by a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases ‘the Minister’), the respondent to this appeal.

2 The appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the decision to refuse to grant him a protection visa. On 21 January 1999, the Tribunal made a decision that it was not satisfied that the appellant was a refugee and affirmed the decision not to grant a protection visa.

3 Subsequently, two proceedings were brought in the High Court of Australia, naming large numbers of unsuccessful applicants to the Tribunal. It was alleged that the Tribunal had misled the applicants as to documents that it proposed to take into account, or had taken into account, in dealing with their respective cases. In Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 190 ALR 601, the High Court gave judgment in favour of an individual applicant in each of two cases. The applicants concerned were named Muin and Lie respectively.

4 The appellant in the present proceeding was named as an applicant in the Lie proceeding. Following the High Court’s judgment, and an order of the High Court that the other individual applicants file their own separate applications, solicitors acting for the applicants in the Lie case filed an application on behalf of the appellant. The appellant swore an affidavit, which was filed in the High Court, exhibiting a copy of the Tribunal’s decision and reasons for decision, a draft order nisi and a statement of the appellant containing his evidence in support of his claim to a well-founded fear of persecution for the reasons of his political opinion and his race, if he were to return to Pakistan.

5 In the draft order nisi, the appellant sought the remedies of prohibition, certiorari and mandamus in respect of the Tribunal’s decision. The grounds specified constituted a catalogue of grounds upon which such relief might be granted: denial of natural justice; failing to take into account relevant considerations or taking into account irrelevant considerations; the decision was so unreasonable that no reasonable decision-maker could have made it; error of law; bad faith or bias, ulterior purpose or procedural defects; want of evidence or other material; and ‘contrary to law’. The appellant also sought an injunction restraining the Minister from removing him from Australia pending the determination according to law of the application for a protection visa.

6 The High Court remitted the application for an order nisi to this Court. It first came before Marshall J for directions. His Honour ordered that the application for an order nisi and the hearing of the return of the order nisi, if granted, be conducted as a single hearing. It was perhaps unnecessary for his Honour to have made such an order, as O 51A r 5(1) of the Federal Court Rules (Cth) produced that result in any event, unless the Court or a judge were to make an order to the contrary, pursuant to O 51A r 5(2). Marshall J also made orders for the preparation of the proceeding for hearing, including an order that the appellant file and serve a statement of contentions of facts and law, setting out particulars of the grounds relied on. The proceeding was then placed in the docket of another judge (‘the primary judge’).

7 On 1 December 2003, the appellant filed in the Court an affidavit, explaining why he had not filed and served a statement of contentions of fact and law, in compliance with the orders made by Marshall J. The affidavit included the following:

‘3. That with the assistance of the Asylum Seeker Resource Centre I
applied to Victorian Legal Aid. I was rejected on the 20^th of October.
That after rejection by Victorian Legal Aid I applied to the Victorian
Bar Legal Assistance Scheme.

4. That on 13 November 2003 I received a letter from the Victorian Bar
Legal Assistance Scheme, stating that they intend to lodge a Freedom
of Information request, in order to more fully assess my case.

5. That I am thirty one years of age. I am an asylum seeker. I am
currently unrepresented. I have no understanding of law and legal
procedure, and so am unable to lodge the statement of facts and
contentions without legal assistance. I have no money. I have no
income. I have no right to work.

6. That I have no money to pay a barrister. I have been genuinely
attempting in the past three or four months to find pro bono legal
assistance. I was required to wait for the decision from Victorian
Legal Aid before I could make a request to the Victorian Bar Pro Bono
Scheme. I have done everything within my means and power to find
pro bono legal assistance.

7. I seek an extension of time from the Court, and request that the
matter not be dismissed at the directions hearing. It is vital to my
future that I be able to continue my matter in the Federal Court.’

8 The proceeding came before the primary judge for directions on 5 December 2003. At the outset, the primary judge asked the appellant, ‘do you have any understanding of what it is that you say is wrong with the decision of the tribunal in this matter?’ In answer, the appellant said that he could not afford to continue to engage the solicitor in Sydney who had acted for him:

‘so I’m looking for someone in Victoria and I try to approach them and I did. But in the first stage I got a refusal, but in the second stage I got answer from Victorian Bar. Now they’ve got the whole file with audiotapes, so I’m just waiting for them, for their answer.’

9 The primary judge said:

‘Is there anything you can take me to about the way in which the tribunal dealt with this matter, that you say was unfair to you? I need to understand what it is that you say is wrong about what the tribunal has done.’

10 The appellant said that he believed that the Tribunal had not looked at his file or the whole of his proof, or his documents. Subsequently, the primary judge indicated to the appellant that he proposed to refuse the application because there was no sufficient ground stated in it. He advised the appellant that the refusal would not stop him, if he could formulate a case, from returning to the Court and making another application. The appellant said, ‘[y]our Honour, can I wait for Victorian Bar?’ The primary judge indicated that, if anyone were able to find a point in the appellant’s favour, he could make a further application to the Court. There was then a discussion, in which counsel for the Minister indicated that he understood that there had been a request to the Tribunal, on the appellant’s behalf, pursuant to the Freedom of Information Act 1982 (Cth) and that the appellant had received documents from the Tribunal. Counsel for the Minister also informed his Honour that, in the normal course, an applicant whose proceedings in the Court were finalised would have 28 days to organise arrangements for departure from Australia.

11 His Honour then gave reasons for judgment, which appear in the transcript of the directions hearing as follows:

‘In this matter the applicant is representing himself. He, for understandable reasons, doesn’t really have an understanding of the legal issues involved in his case, let alone whether there is any basis for legal error in his challenge to the decision of the tribunal. This court has a very limited role in judicial review in matters of this kind, and putting it simply, absent any basic legal error or any demonstrable procedural unfairness, there’s no basis for this court to intervene. The matter comes before me today on the return of an order nisi which, by consent order, was to be conducted at a final hearing.

I’ve had some criticism of the course that’s been followed here, because the papers simply don’t demonstrate any arguable basis for challenge to the decision. The way in which this matter has proceeded would require the whole matter to go through a process of contentions and all through to a final hearing, on papers that don’t raise an arguable ground for challenge to the decision. As I’ve expressed in the past, it seems to me in such a situation it’s appropriate that the court make an order under order 51A rule 5(2), that would require the applicant to at least demonstrate that there is some arguable basis for his application to the court, rather than have the matter go to a final hearing. I’ve asked the applicant what his complaint is and I haven’t been able to discern from him anything that would suggest he has a ground for legal error.

He has an application to the Victorian Bar for assistance and has signed an FOI form so as to obtain papers. It seems to me the appropriate course in such a situation is to refuse the application for an order nisi on an interlocutory basis, but that would permit the applicant, if he were able to discern any ground for intervention, to apply again to the court on the basis of such material as he then wishes to put and on the basis of such legal submission as he would then wish to put, and apply for an order nisi. The basis upon which then I propose to proceed is:

1. To vacate order number 1 of the orders made by consent before
Marshall J on 17 October 2003.

2. To order, under order 51 [sic] rule 5(2) that subrule (1) does not apply to this case.

3. Refuse the application for an order nisi and make it clear that I am
doing so as an interlocutory order, so it would be without prejudice to
any right of the applicant to return to the court on another day if he
has grounds.’

12 There was then a discussion between the primary judge and counsel for the Minister about whether his Honour should order the appellant to pay the Minister’s costs of the proceeding. The primary judge indicated that he would make such an order. The transcript records his Honour as saying:

‘The reason I do so is that the applicant has asked for the procedure to be conducted in this particular way and even though I have a view - which I’ve expressed - that it was probably more appropriate for the minister to not proceed further unless satisfied that there is some arguable basis for the matter to proceed, in view of the fact that it’s happened in this way in other jurisdictions of the court in other states, and that it happened in this case by consent, I don’t think the minister should not have the usual order for costs. So that disposes of the matter.

Can you explain to Applicant M171 what I’ve done is I’ve refused his application today because, as I said, there’s simply no ground in this material for any legal challenge, and I’ve made him pay costs and ordered that he pay the costs of the minister because he has instituted a proceeding which he has requested follow a particular course, and that proceeding is not found to have had any legal basis. Apparently the practice is, he has 28 days to make arrangements to leave. If within that time he can get the Victorian Bar to try and find an appropriate legal ground, or anyone else, then it’s open to him to come back to the court. But that’s a matter for him. So if you could explain that to him, I’d be very appreciative. Yes, thank you.’

13 The order entered in consequence of what took place on 5 December 2003 was in the following terms:

‘1. Vacate order number 1 of the orders of Marshall J dated 17 October
2003.

2. Under Order 51A subrule 5 (2) of the Federal Court Rules, subrule (1)
does not apply.

3. Refuse the application for an order nisi.

4. The applicant pay the respondents’ costs of and incidental to the
proceeding.’

14 On 23 December 2003, the appellant filed a notice of appeal, stating that he appealed from the ‘whole of the decision’ of the primary judge given on 5 December 2003. The ground of appeal was that:

‘His Honour erred in finding that the Refugee Review Tribunal’s decision was not affected by jurisdictional error.’

15 In the notice of appeal, the appellant sought orders: that the ‘decision’ of the primary judge be set aside; there be a declaration that the decision of the Tribunal is unlawful, void and of no force and effect; for the grant of certiorari quashing or setting aside the decision of the Tribunal; and for the grant of prohibition directed to the respondent, prohibiting her from acting upon or giving effect to or proceeding further upon the decision of the Tribunal.

16 The Minister filed a notice of objection to the competency of the appeal, on the ground that the judgment of the primary judge is an interlocutory judgment, from which an appeal cannot be brought without leave. See s 24(1) and (1A) of the Federal Court of Australia Act 1976 (Cth). At a call-over on 10 February 2004, the Chief Justice ordered that any application for leave to appeal and any application for an extension of time in which to apply for leave to appeal be filed and served by 11 March 2004. His Honour also ordered that any application for leave specifically set out the grounds of the appeal.

17 On 11 March 2004, the appellant filed a document headed ‘Application for Extension of Time to File and Serve Notice of Appeal and for Leave to Appeal’. The document stated that the grounds of the appeal appear in the annexed affidavit.

18 In an affidavit filed at the same time, the appellant said:

‘On or about 22 December 2003 I attended the Asylum Seeker Resource Centre ("ASRC"), which is a not for profit organisation that had been assisting me in attempting to obtain a barrister to appear for me.

Before I attended my appointment I was of the belief that I had 28 days to appeal the decision of [the primary judge].

After the dismissal on 5 December 2003 I had a conversation with the other barrister at Court for the Department. He explained to me that I now had 28 days to leave the country. I was of the mistaken belief that this also meant that I had 28 days in which to appeal the decision. Immediately after the Court hearing, I went to the Registry and obtained the appeal forms. I then made an appointment to attend the ASRC for further assistance.

At Court on 5 December 2003 I was not assisted by an Urdu speaking interpreter. My English is good and I can understand conversations but I struggle with difficult legal words. My first language is Urdu.

When I attended at the ASRC they helped me complete a Notice of Appeal and told me to file and serve it with the Court the next day. This is what I did. I filed the form on 23 December 2003.

I do not understand law and legal procedure. I did not know that the decision of His Honour [the primary judge] would be considered to be an interlocutory hearing, I still do not really know what this means. I did not know that I had 7 days from the 5 December 2003 to file an application for leave to appeal the decision. Nobody explained to me that I had 7 days.’

19 On the hearing before this Court, in response to a question from the Court, the appellant indicated that the Victorian Bar pro bono scheme had now declined to give him assistance, and that he was seeking assistance from the Asylum Seeker Resource Centre.

20 There is no doubt that the primary judge was correct in saying that the material before him did not disclose any ground on which it was arguable that the appellant was entitled to have the decision of the Tribunal quashed and to have his application for review of the decision to refuse him a protection visa heard again. It does not follow necessarily from this that his Honour was correct to terminate the proceeding before him by refusing an order nisi.

21 The order that the primary judge made prejudiced the appellant in a number of ways. Most obviously, it terminated his existing proceeding. It thereby deprived him of whatever opportunity he might have had to put before the Court such material as he might have been able to obtain, for the purpose of advancing his case in that proceeding. The termination of the proceeding also exposed him to the likelihood that the Minister would apply for an order that the appellant pay the Minister’s costs of the proceeding. Counsel for the Minister did so apply and the primary judge made that order. If the appellant had been able to obtain from a barrister, under the Victorian Bar pro bono scheme, legal advice that enabled him to advance a legitimate ground on which the Tribunal’s decision could have been overturned, he would also have been prejudiced by having to advance that ground in a new proceeding. If he had failed to commence such a proceeding within 28 days, he was in danger of being removed from the country, which would have had a considerable impact on his ability to conduct his case. In instituting a new proceeding, the appellant would have been liable to pay a filing fee to the Court, pursuant to reg 2AA of the Federal Court of Australia Regulations 1978 (Cth), or at least to have persuaded the Registrar of the Court that the fee should be waived pursuant to that regulation because of his impecuniosity.

22 The Minister was also prejudiced by the orders that were made. Assuming that the appellant could not advance a sufficient ground to justify the continuance of his case, the Minister would arguably have been entitled to have a final determination of the case, as a result of a hearing conducted under the regime contemplated by O 51A r 5(1). By making an interlocutory order instead, the primary judge left open the possibility of a further proceeding by the appellant. On the assumption that the appellant lacked the means to pay any order for costs, the commencement of a new proceeding would have caused the Minister to incur further costs, which she had no real chance of recovering. Any new proceeding commenced in this Court, rather than the High Court, would have been devoid of any effective time limit. If it challenged the decision of the Tribunal on a ground of jurisdictional error, such a proceeding would have been based on the proposition that the Tribunal’s decision was not a ‘privative clause decision’ within the meaning of s 474 of the Migration Act, and that therefore the time limit expressed in s 477(1) of the Migration Act did not apply. See Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 2 (2003) 211 CLR 476.

23 The primary judge seems to have assumed that a new proceeding could only have been commenced if the appellant received advice that he had a good case. Of course, a new proceeding could be commenced even if it were entirely without merit, whether on its face or in substance. The fact that a proceeding will be unsuccessful does not prevent its commencement. Because this Court does not have a procedure by way of order nisi, it would be necessary for the Minister to apply to have the new proceeding dismissed. To achieve this, the Minister would have to demonstrate that the new proceeding has no chance of success. In contrast, a final determination of the existing proceeding would have provided the Minister with a ground for summary dismissal of any new proceeding. The principle of res judicata would have rendered any new proceeding unsustainable, because all issues relating to the matter would be taken to have been determined in the first proceeding.

24 In the face of this prejudice to both parties, the better course would have been to enlarge the time fixed by the order of Marshall J within which the appellant was to state his facts and contentions, so as to give him a fair opportunity to state any ground as to which he may have been advised that he had a chance of success. This was the course that the appellant sought, both by means of his affidavit filed on 1 December 2003 and by means of his oral submissions at the directions hearing on 5 December 2003. The primary judge did not deal with this application in terms. His Honour made no order dismissing it. The closest his Honour came to mentioning it was to refer in reasons for judgment to the appellant’s application to the Victorian Bar for assistance and to his application to obtain documents from the Tribunal.

25 It is clear that an application for leave to appeal from the exercise of discretion by a primary judge in making an interlocutory order usually has very little chance of success. An appellate court cannot overturn the judgment of a primary judge simply because the judges constituting the appellate court would have exercised the discretion differently in the particular case. It has to be shown that the exercise of the discretion miscarried. In my view, this is a case in which the exercise of the discretion did miscarry. It miscarried because, in effect, the discretion was not exercised at all. The primary judge ignored the appellant’s application for further time. He did not consider any of the aspects of prejudice to both parties to which I have referred in [21] – [23].

26 As I have said, at the hearing before this Court, the appellant made it clear that he has not been able to obtain legal advice suggesting that he has an arguable ground on which to challenge the decision of the Tribunal. It might be said that, for this reason, his attempt to appeal from the judgment of the primary judge should be terminated now. As I have said, however, the effect of that would be to put the appellant in a position of being able to commence a further proceeding in this Court, even though he may not have any clear ground for doing so. If the appellant were now to be allowed to succeed on his appeal, the matter would be returned to the primary judge. His Honour would have the opportunity to dispose finally of the matter in a hearing of the kind contemplated by O 51A r 5(1). Such a final disposition would provide the Minister with a complete defence to any further proceeding, enabling her to apply for judgment in such a proceeding at an early stage, based on the principles of res judicata.

27 I am of the view that the time within which the appellant was required to file his application for leave to appeal should be enlarged, so as to permit his application to be made. Although the order made by the primary judge dismissing the application for an order nisi was in form an interlocutory order, its effect was finally to determine the proceeding, although not to determine any issue in it. The ignorance of the appellant as to the distinction between an interlocutory order and a final order is understandable; lawyers sometimes make a similar mistake.

28 Leave to appeal should be granted and the orders made on 5 December 2003 should be set aside. The matter should then be remitted to the primary judge for further consideration. In case the appellant has incurred any costs in relation to the application for leave to appeal and the appeal, an order should be made that the Minister pay them.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 24 August 2004

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1151 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT M171/2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	GRAY, MOORE AND EMMETT JJ
DATE:	24 AUGUST 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

MOORE J

29 On 2 July 1998, the applicant lodged an application for a protection visa. The application was refused by a delegate of the respondent on 21 July 1998 and that decision was affirmed by the Refugee Review Tribunal ("the Tribunal") on 21 January 1999. It is unnecessary to detail all the procedural steps taken by the applicant to challenge, by way of judicial review, the decision of the Tribunal. It is sufficient to note that an application for an order nisi was filed in the High Court on 27 May 2003 which was subsequently remitted to this Court.

30 That application was ultimately dealt with by Merkel J on 5 December 2003. His Honour adopted the approach, reflected in procedural orders he made, that it was appropriate that the matter be dealt with as an application for an order nisi only. To this end, his Honour made an order that O 51A r 5(1) of the Federal Court Rules not apply. The substantive order his Honour made was that the application for an order nisi be refused. The transcript of the proceedings on 5 December 2003 reveals that his Honour concluded, on the material filed by the applicant in support of the grant of an order nisi, no arguable case was disclosed. The transcript also reveals that his Honour intended the order to be interlocutory and the applicant could commence fresh proceedings if there was a point of substance to be raised.

31 The applicant filed a notice of appeal against the judgment of Merkel J on 23 December 2003. The respondent filed a notice of objection to competency on 22 January 2004. On 11 March 2004, the applicant filed an application for an extension of time to file and serve a notice of appeal and for leave to appeal.

32 The order made by Merkel J was interlocutory. It is necessary for the applicant to apply for leave to appeal within 21 days of the order being made unless compliance with the rule imposing that time limit (O 52 r 5(2)) is dispensed with by the Court. I would extend time (by dispensing with the requirement to file within the specified time: O 52 r 5(3)) but refuse leave. I would extend time because the applicant sought to appeal within time but did not follow the appropriate procedure for challenging, by way of appeal, an interlocutory order. I would refuse leave to appeal because any appeal would have no prospects of success.

33 The application for the order nisi filed on 27 May 2003 in the High Court took the form of an affidavit. Annexed to that affidavit was a draft order nisi alleging the Tribunal did not accord him natural justice, that it constructively failed to exercise jurisdiction in several particularised respects, its decision was unreasonable in a Wednesbury sense, it erred in law, it acted in bad faith or for an ulterior purpose and did not follow procedures required by the Migration Act 1958 (Cth). None of these allegations were particularised. Nothing in the body of the affidavit provided a factual foundation for any of the allegations. Accordingly, Merkel J was correct in refusing the order nisi. Any appeal from his Honour's interlocutory order should fail.

34 I would dispense with the requirement that the application for leave to appeal against the judgment of Merkel J of 5 December 2003 be filed within 21 days, I would refuse leave to appeal and I would order the applicant to pay the respondent's costs.

35 Since preparing these reasons I have had the opportunity of reading the reasons for judgment of Gray J in a draft form. I wish to make the following further observations.

36 The operative order made by the primary judge was to refuse the application for an order nisi. He made two ancillary orders, orders 1 and 2, which had the effect of raising the application for an order nisi as the first matter his Honour needed to address. Probably the better view is that he also decided not to adjourn the proceedings in the face of the applicant's submissions about being in the process of seeking the assistance of the Victorian Bar. Circumstances can arise where the Court or Tribunal is obliged to adjourn a matter even though no formal application for an adjournment is made (as is the case here): see Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J.

37 It is probably appropriate to approach the matter on the footing that the substantive order (to refuse or dismiss the application for an order nisi) could be impugned on the basis that it should not have been made (a matter already addressed) or it was made in circumstances where the appellant was denied procedural fairness. As to the former proposition, the primary judge was, as I have already indicated, entitled to make the order he did.

38 The issue of whether there was a denial of procedural fairness might arise in two ways. The first would flow from the primary judge altering the basis on which the matter was proceeding by varying the orders made by Marshall J with the result that he heard, on 5 December 2003, the application for an order nisi. In my opinion, the approach of the primary judge was, in this respect, reasonably open. Marshall J had made directions designed to expose the case the applicant wished to maintain. Both contentions of fact and law and affidavits in support of those contentions had to be filed by the applicant. Neither step was taken. In those circumstances the primary judge was confronted at the directions hearing on 5 December 2003 with a situation where the appellant had articulated no case of substance even though the orders of Marshall J were intended to achieve that result. It was open to the primary judge to alter the procedural course of the proceedings determined by Marshall J. As a result of the conduct of the appellant, the objectives Marshall J had sought to achieve had not been achieved. That is not to say, the primary judge might not have adopted another course. The primary judge could have, for example, fixed the matter for a hearing of the type contemplated by O 51A r 5(1), though if the applicant had taken no steps to articulate a case, there would have been a real prospect that the entire application would have then been dismissed. However it does not appear to me that the exercise of the discretionary power to alter the procedural course of the proceedings by making the order under O 51A r 5(2), miscarried.

39 As to the second possible basis on which there might have been a denial of procedural fairness, the primary judge was entitled to refuse to adjourn the proceedings. The applicant simply indicated he was seeking the assistance of the Victorian bar. There was no material before the primary judge to suggest that the applicant had a case which a member of the Bar might formulate in clearer and more compelling terms. It may be accepted that assistance from the Bar might have resulted in a case being identified which, to that point, the appellant had been unable to articulate at all. However the primary judge was not obliged to grant the adjournment on that assumption. It was open to him, as a matter of discretion, to follow the course he did.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 24 August 2004

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1151 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT M171/2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	GRAY, MOORE AND EMMETT JJ
DATE:	24 AUGUST 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

EMMETT J:

40 I have read the reasons of Gray J in draft form. I do not agree that there was any error on the part of the primary judge. No leave to appeal should be granted.

41 In the course of the hearing before the primary judge, the appellant made statements from the Bar table that his former solicitors, Adrian Joel & Co, who are in Sydney, had lodged a class action on his behalf in the High Court but that he could no longer afford those solicitors and was ‘looking for someone in Victoria’. He said that, at first, he was refused, but that the Victorian Bar now had ‘the whole file with audio tapes’ and that he was waiting for an answer from them. While it may be implicit in those statements that the appellant wanted more time, he made no formal application for an adjournment of the hearing.

42 The primary judge appears to have taken the view that, in order to afford the appellant the opportunity of getting advice and pursuing his claim, if it had any merit, he would order that O 51A r 5(1) of the Federal Court Rules not apply to the case. His Honour then proceeded to make an order refusing an order nisi with costs. Such an order was interlocutory. His Honour’s clear intention was that the matter would be disposed of at that time because, on the material before his Honour, it was completely without merit. Nevertheless, by making an order that r 5(1) did not apply, his Honour was also leaving open the possibility that, having obtained legal advice, the appellant might be able to demonstrate some basis for constitutional writ relief. He would probably not be barred from commencing a further proceeding in that event. An examination of the material before his Honour makes it amply clear why his Honour considered that the appellant’s claim was quite without merit.

43 The applicant is a national of Pakistan, whose claim for a protection visa was based on race and political opinion. He undertook secondary education and completed a diploma in computer science in Pakistan before coming to Australia on a student visa in early 1997. However, the appellant made no claim to refugee status until some eighteen months after his arrival in Australia. He lodged an application after having been detained by officials from the Department for a breach of visa conditions and after cancellation of his student visa.

44 The Tribunal in its reasons of 21 January 1999 noted that, while in detention, the applicant initially stated that he had no refugee claims and that he would depart Australia voluntarily. He said that he could return to Pakistan, that he sought to stay in Australia only temporarily and that he had never committed any offences against the laws of ‘another country’. He stated that his purpose in travelling to, and staying in, Australia was to study, and that he wished to remain for a further six months so that he could complete ‘a short course’. When asked if he thought he ‘may suffer unreasonable hardship’ due to any cancellation of his visa, the appellant made no allusion to any refugee claims. He agreed that he had a right of return to Pakistan and made no reference to any issue of asylum when asked if there was anything he wished to add before the conclusion of the interview with the Department.

45 The Tribunal observed that the applicant was apparently in breach of his visa conditions from soon after his arrival in Australia. He did not attend his study course as required. In flouting the conditions of his visa, the appellant left himself at risk of being returned to Pakistan. He not only took no steps to regularise the situation, but failed to raise any Convention related reason for remaining in Australia when he was detained and faced repatriation, notwithstanding the later claim of having fled Pakistan in order to seek asylum.

46 The Tribunal observed that, while the appellant may have been advised by other inmates that he could avoid the prolongation of his detention by delaying any formal application for a protection visa, that did not preclude him from giving honest answers to questions asked of him regarding, for example, any hardship he may face in Pakistan. The Tribunal considered that the appellant had a history of saying whatever suited his purpose at the time.

47 Upon consideration of the whole context of the appellant’s situation, the Tribunal did not find it plausible that, having fled Pakistan in order to seek refugee status in Australia, the appellant would take no steps at all to seek that status until faced with an imminent prospect of deportation. The Tribunal concluded that the appellant’s delay in making an application for asylum, his expressed intention to depart Australia voluntarily and the content of his interview in relation to the cancellation of his visa were inconsistent with a subjective fear of persecution in Pakistan.

48 When the appeal was called on for hearing, the appellant indicated that the Victorian Bar had declined to assist. Accordingly, there is nothing before the Court to suggest that there is the slightest substance in any claim by the appellant. In the draft order nisi filed in the High Court on behalf of the appellant at some time in 2003, in excess of three years after the Tribunal’s decision, relief was claimed on the basis that the Tribunal:

•	made its decision in circumstances that amounted to a failure to accord the appellant natural justice;
•	failed to exercise its jurisdiction by failing to take into account relevant considerations;
•	constructively failed to exercise its jurisdiction because it was affected by an error of law;
•	improperly exercised power because the decision was affected by bad faith or bias or was made for an ulterior purpose or was not made in accordance with the procedure set out in the Act;
•	made a decision that was so unreasonable that no reasonable decision maker could have made it.

49 Those complaints were not supported by any particulars. The appellant has at no stage advanced any possible ground on which constitutional writ relief might be contemplated, much less granted. It is demonstrably patent that there is nothing of any substance whatsoever in the appellant’s claim as formulated so far. The primary judge acted with complete propriety in the manner in which he dealt with the matter.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 24 August 2004

The Appellant appeared in person

Counsel for the Respondent:	R Knowles
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	14 May 2004
Date of Judgment:	24 August 2004