Applicant S442 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 28

FEDERAL COURT OF AUSTRALIA

Applicant S442 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 28 APPLICANT S442 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 2001 of 2003

FINN, EMMETT and SELWAY JJ 18 FEBRUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2001 OF 2003

BETWEEN: APPLICANT S442 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FINN, EMMETT AND SELWAY JJ

DATE OF ORDER: 18 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave to appeal refused. 2. The applicant to pay the respondent's costs of and related to the application for leave to appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2001 OF 2003

BETWEEN: APPLICANT S442 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FINN, EMMETT AND SELWAY JJ

DATE: 18 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal or, if leave is not required, an appeal from the decision of the primary Judge given on 28 October 2003 ([2003] FCA 1240). The primary Judge dismissed the applicant's application for an order nisi – an application which had been remitted to this Court from the High Court. For the reasons given below we are of the view that leave to appeal is required, but should not be given. 2 The case arises from a decision of the Refuge Review Tribunal ('the Tribunal') given on 23 November 2001, which confirmed the decision of the delegate not to grant a protection visa to the applicant. 3 On 2 December 2002, the applicant instituted proceedings in the High Court (No S442 of 2002) seeking an order that the Minister show cause why a writ of mandamus, certiorari, prohibition or an injunction should not issue in relation to the decision of the Tribunal. The affidavit filed by the applicant in support of those proceedings revealed that the applicant had previously failed in an application for review of the Tribunal decision in previous proceedings in this Court (see NAAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 720). An appeal from the orders made in those proceedings had been dismissed by a Full Court of this Court on 5 November 2002 by consent. On 6 February 2003, the High Court ordered that the High Court proceedings be remitted to this Court. 4 The remitted proceedings in this Court (No N 356 of 2003) were considered by the primary Judge on 28 October 2003. His Honour delivered ex tempore reasons on that day (see [2003] FCA 1240). His Honour treated the application before him as an application for an order nisi. The applicant had applied for an adjournment in order to seek legal advice. His Honour refused that application, noting that the applicant had had ample opportunity to obtain legal advice. In view of that ruling the applicant declined to put any submission and his Honour proceeded to consider the matter for himself. His Honour ordered that the 'application for an order nisi be dismissed'. 5 On 20 November 2003, the applicant filed a notice of appeal and an application for leave to appeal. These would seem to be directed to the refusal of the primary Judge to grant the order nisi. To the extent that any ground of appeal is identified in either the notice or the application it is that the primary Judge should have adjourned the proceeding so as to afford the applicant an opportunity to obtain legal advice and consequently to put a submission to Allsop J. The application for leave to appeal came on before Hely J on 2 December 2003 ([2003] FCA 1452). His Honour referred to this Court the question whether leave to appeal was required and, if so, whether it should be granted. His Honour also granted leave to the applicant to file and serve an amended draft notice of appeal by 2 February 2004, detailing the grounds of appeal. No such notice has been filed. 6 When the matter came on before us Mr Patel announced an appearance as counsel for the applicant. The Court had had no previous notice of his acting. The Court sought some clarification of his position and gave a short adjournment to enable him to take further instructions. When the Court reconvened Mr Patel advised that he did not have instructions. He was given leave to withdraw. The applicant then sought an adjournment to obtain legal advice and assistance. He informed the Court that he had expected that Mr Patel would make submissions on his behalf. In view of the background to the matter, including the failure of the applicant diligently to seek legal advice at least until relatively recently, the past history of the matter, the expenses incurred by the respondent, the obvious need to ensure that the court lists be complied with and the prospects of success if leave to appeal were granted, the Court declined the applicant's request for an adjournment and required the applicant to proceed. The applicant submitted that the primary Judge should have adjourned the proceedings so as to enable the applicant to obtain further legal advice, but otherwise was not able to assist the Court. 7 It is clear that the decision of the primary Judge not to grant an order nisi in the context of O 51A r 5 of the Federal Court Rules is an 'interlocutory decision' for the purpose of s 24(1A) of the Federal Court of Australia Act 1976 (Cth): see NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297. Consequently, the applicant requires leave to appeal from the order of the primary Judge. 8 One of the issues relevant to whether leave should be granted is the strength or otherwise of the applicant's case if leave was granted. Taking a generous view of the current appeal grounds, the only issue raised by the applicant relates to the alleged error by the primary Judge in not granting an adjournment to the applicant to enable him to seek legal advice. 9 We note that Allsop J had adjourned the matter when it first came before him for hearing on 27 October 2003, on the basis that the interpreter services that were then available were inadequate (see [2003] FCA 1236). When the matter came on again before him on 28 October 2003, the applicant sought an adjournment on the basis that he wished to seek further legal advice and assistance and on the basis that he had been unable to prepare by reason of ill health. 10 The decision whether or not to grant an adjournment is a discretionary decision and an appeal court will be slow to interfere with such an exercise of discretion: see House v The King (1936) 55 CLR 499 at 504-505; Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177, 180. Plainly enough the discretion must be exercised judicially, but that will include considerations relating to the conduct of court lists: see Sali v SPC Ltd (1993) 116 ALR 625. 11 In this case the primary Judge gave detailed consideration to the applicant's request for an adjournment. He referred to previous orders made by Emmett J which required the applicant to get his case ready for hearing and noted that those orders had not been complied with. His Honour noted the previous attempts by the applicant to seek legal advice and noted that 'there was no evidence before me yesterday and there is no evidence before me today that any real and timely effort has been made to obtain legal advice since...I set this matter down'. His Honour noted that the applicant had informed the Court of various injuries and hospitalisation that the applicant claimed that he had suffered. The applicant provided a medical report to the Court in relation to those injuries. However, his Honour concluded that there was nothing in that material which suggested that the applicant 'could not bring together what he wanted to say about the Refugee Review Tribunal decision' – nor did it explain why the applicant had not been able to obtain legal advice. His Honour noted that the respondent would incur extra expense if the matter was adjourned. 12 Notwithstanding all of these matters his Honour intimated that if there had been some prospects of success of the application he may nevertheless have granted the adjournment. His Honour concluded that there were no such prospects. His Honour referred to the previous Federal Court proceedings which appeared finally to dispose of the relevant issues and concluded: '…there is no arguable case beyond one which would not be estopped and prevented from proceeding as in effect an abuse of process. Whether one expresses the matter in terms of Henderson v Henderson, res judicata or an abuse of process, these proceedings have been heard and lost.' 13 His Honour also looked at the prospects of success in the proceedings even if they had not already been finalised in earlier proceedings. His Honour concluded: 'In all the circumstances, I see no basis whatsoever to conclude that there was an arguable case for jurisdictional error being shown by the Tribunal so as to warrant the issue of an order nisi by the Court, let alone for the making of an order under the constitutional writs provided for by s 75(v). As can be seen from the above, there is much to be said against the making of any order.' 14 Given his view that there was no proper basis for the proceedings, and all of the matters referred to above, the primary Judge refused the adjournment sought by the applicant. His Honour declined to grant the order nisi. 15 The analysis by the primary Judge was plainly correct. There was no appealable error in his Honour's decision not to grant an adjournment so as to enable the applicant to seek legal advice. The applicant has no prospect of success if leave to appeal were granted. Consequently it would be futile to grant leave to appeal and we refuse such leave. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Emmett and Selway .