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Federal Court of Australia - Full Court Decisions |
Last Updated: 2 March 2004
FEDERAL COURT OF AUSTRALIA
Applicant S494 of
2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004]
FCAFC 37
Re Media, Entertainment
and Arts Alliance; ex parte Hoyts Corporation Pty Ltd [1993] HCA 41; (1994) 119 ALR
206
APPLICANT S494 OF 2002 v MINISTER
FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
N 1710 of
2003
NORTH, DOWSETT & LANDER JJ
23 FEBRUARY
2004
SYDNEY
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL
COURT OF AUSTRALIA
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BETWEEN:
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APPLICANT S 494 OF 2002
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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SYDNEY
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THE COURT ORDERS THAT:
1. The purported appeal be dismissed as incompetent.
2. The appellant pay the respondent’s costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT
OF AUSTRALIA
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AND:
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REASONS FOR JUDGMENT
1 I agree with the reasons for decision given by Lander J.
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I certify that the preceding (1) one numbered paragraph is a true copy of
the Reasons for Judgment of Justice North.
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Associate:
Dated: 2 March 2004
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IN THE FEDERAL COURT OF AUSTRALIA
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SOUTH AUSTRALIA DISTRICT REGISTRY
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N 1710 OF 2003
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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APPLICANT S 494 OF 2002
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
RESPONDENT |
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JUDGES:
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NORTH, DOWSETT & LANDER JJ
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DATE:
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23 FEBRUARY 2004
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
DOWSETT J
1 I also agree.
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I certify that the preceding (1) one numbered paragraph is a true copy of
the Reasons for Judgment of Justice Dowsett.
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Associate:
Dated: 2 March 2004
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IN THE FEDERAL COURT OF AUSTRALIA
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|
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SOUTH AUSTRALIA DISTRICT REGISTRY
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N 1710 OF 2003
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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APPLICANT S 494 OF 2002
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
RESPONDENT |
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JUDGES:
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NORTH, DOWSETT & LANDER JJ
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DATE:
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23 FEBRUARY 2004
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
LANDER J
1 This is an appeal from an order of a judge of this Court refusing an application for an order nisi for the issue of writs of mandamus and prohibition directed to the first respondent.
2 The appellant is a Pakistani national. He applied for a protection visa claiming that if he were to be returned to Pakistan he would be likely to be killed. He claimed to have a well-founded fear of persecution. The Minister’s delegate refused his application on 29 April 1999. He applied to the Refugee Review Tribunal (‘the RRT’) for a review of that decision. On 28 February 2002 the RRT affirmed the decision not to grant a protection visa.
3 On 20 March 2002 the appellant applied to this Court for a review of that decision. The matter was listed before Moore J on 14 June 2002. The appellant did not appear and pursuant to O 32 r 2(1)(c) of the Federal Court Rules, Moore J dismissed the application.
4 The appellant appealed from that decision. Moore J’s order was an interlocutory order. Consequently, leave to appeal should have been sought: O 52 r 10. Whilst a Full Court of this Court found that the appellant needed leave to appeal it treated the appeal as an application for leave. On 27 November 2002 the Court dismissed the appellant’s application for leave to appeal. The appellant made no submissions to the Full Court. Sackville J (with whom Whitlam & Conti JJ agreed) said that ‘there is nothing in the material before the Court today, or that was before the primary judge, to indicate that the appellant had any basis upon which to seek judicial review of the RRT’s decision’. The Court found that the appellant had no reasonable prospects of success to warrant the grant of leave.
5 On 20 December 2002 the appellant applied in the High Court for the issue of constitutional writs. That application was remitted to this Court on 6 February 2003 by Gaudron J.
6 The hearing of that matter came before Jacobson J on 16 October 2003. The appellant did not appear and Jacobson J proceeded under O 32 r 2(1)(d) to hear the matter. He dismissed the appellant’s application and gave ex tempore reasons. Those reasons were later published on 27 October 2003.
7 On 31 October 2003 the appellant lodged a notice of appeal. It is that matter which is before the Court.
8 In my opinion the appeal is incompetent. An application for the issue of the constitutional writs is interlocutory in nature and an order dismissing that application is an interlocutory order: Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd [1993] HCA 41; (1994) 119 ALR 206.
9 It seems to me that this Court has two options. It may dismiss the appeal as incompetent or it may treat the notice of appeal as an application for leave to appeal.
10 In my view the Court should dismiss the appeal as incompetent. The order reportedly appealed from was made on 16 October 2003 but the notice of appeal was not filed until 31 October 2003. An application for leave to appeal, if not made orally to the judge who has pronounced the order, must be made on notice within 7 days of the interlocutory judgment: O 52 r 10.
11 No explanation has been given for the failure by the appellant to seek leave to appeal, and no explanation has been given for the delay in filing the notice of appeal.
12 The appellant did not appear before the judge appealed from. No explanation has been given for his failure to appear.
13 The present application which was refused by the trial judge without the attendance of the appellant in my opinion is an abuse of the processes of this Court.
14 The appellant has exhausted his rights in this Court on previous occasions. There is no further material before this Court which was not before the previous Full Court. This is the fourth occasion where the appellant has sought the intervention of this Court. On each of the three previous occasions the Court has found that the appellant’s claim is entirely without merit.
15 In those circumstances this Court should not treat the incompetent appeal as an application for leave to appeal. It would be encouraging an abuse of its own processes.
16 Even if this Court did treat the incompetent appeal as an application for leave to appeal, for the reasons given by Sackville J, the application would be bound to fail.
17 In my opinion the purported appeal should be dismissed as incompetent.
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I certify that the preceding seventeen (17) numbered paragraphs are a true
copy of the Reasons for Judgment of Justice Lander.
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Associate:
Dated: 2 March 2004
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Counsel for the applicant:
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The applicant appeared in person
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Counsel for the respondent:
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Mr R Bromwich
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Solicitor for the respondent:
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Clayton Utz
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Date of Hearing:
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23 February 2004
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Date of Judgment:
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23 February 2004
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2004/37.html