Applicant M165 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 110

FEDERAL COURT OF AUSTRALIA

Applicant M165 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 110 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 referred to APPLICANT M165 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V7 of 2004 BEAUMONT, WEINBERG & CRENNAN JJ 7 MAY 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V7 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN: APPLICANT M165 OF 2003

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, WEINBERG & CRENNAN JJ

DATE OF ORDER: 7 MAY 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed as incompetent. 2. The application for an extension of time within which to seek leave to appeal, and the application for leave to appeal be refused. 3. The applicant pay the respondent's 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 V7 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN: APPLICANT M165 OF 2003

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, WEINBERG & CRENNAN JJ

DATE: 7 MAY 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT

the court 1 This is both an appeal, and an application for leave to appeal, from a judgment of Goldberg J given on 17 December 2003. The applicant/appellant (hereinafter referred to for convenience as "the applicant") is a citizen of Sri Lanka of Sinhalese ethnicity, who arrived in Australia on 1 April 1997. 2 On 9 September 1998, the applicant applied for a protection visa, together with her husband and daughter. She claimed that she faced persecution if required to return to Sri Lanka based on imputed political opinion. On 23 October 1998, a delegate of the respondent Minister refused that application. On 19 May 2000, the Refugee Review Tribunal ('the Tribunal') affirmed the delegate's decision. The Tribunal concluded that there was not a real chance that she would suffer persecution for a Convention reason if she returned to Sri Lanka, and therefore was not satisfied that she was a person to whom Australia owed protection obligations under the Convention. 3 The Tribunal found that political violence between the People's Alliance coalition ("the PA") and the United National Party ("the UNP") was more prolific around elections, but that there was generally speaking no harassment of former or current UNP members by the authorities. The Tribunal found that the applicant was a low-level supporter of the UNP, and accepted that she had received threats at the time of the 1994 general elections as a result of her involvement with that party. It found that her house had been defaced with slogans, and that stones had been thrown at it, but that such harassment was confined to the time before and during the 1994 elections. However, it rejected her claim that she was forced to remain in hiding for years. 4 The Tribunal accepted that the applicant's parents' house had been destroyed by the People's Liberation Front ("the JVP") in 1997. However, it did not find that this was done for a Convention reason. The Tribunal accepted that the applicant had been 'ostracised' by other members of her family, some of whom had moved to Italy. It found that the applicant's current husband had supported her and her daughter, and that they had come to Australia to start a new life. It found that the applicant supported her husband in Australia while he was studying. 5 The Tribunal did not accept the applicant's claim that the reason she had waited for 15 months before applying for a protection visa was because she was unaware of her rights. It regarded this delay as confirming its findings as to the reasons why the applicant and her family came to Australia. 6 The applicant filed an application in the High Court seeking writs of prohibition and certiorari in relation to the Tribunal's decision. That application was remitted to this Court. In contentions of fact and law dated 13 November 2003, the only ground of review particularised by the applicant was that the Tribunal had failed to accord procedural fairness, in that it relied upon a particular Department of Foreign Affairs and Trade ("DFAT") cable, CL38234, dated 15 December 1995, without giving the applicant an opportunity to respond to the information contained in that cable. 7 The applicant appeared before Goldberg J on 17 December 2003, in order to be heard on her application for orders nisi. However, she was unprepared on that day, and sought an adjournment, which his Honour granted. The matter was adjourned to 22 December 2003. His Honour made it clear that, in order to have any chance of being granted orders nisi, the applicant would have to inform him as to what, if anything, she would have said to the Tribunal in response to the DFAT cable, had she been given the opportunity to do so. 8 When the adjourned hearing resumed on 22 December 2003, the applicant failed to appear. In those circumstances, the application for orders nisi for writs of prohibition and certiorari was refused. In other words, Goldberg J did not undertake any consideration of the substantive merits of the application. 9 On 6 January 2004, the applicant filed a "notice of appeal" from the judgment of Goldberg J. Because the orders made by his Honour were interlocutory in nature, the applicant required leave to appeal. On 22 January 2004, the respondent filed a notice of objection to competency. There is plainly no answer to that objection. 10 The applicant then filed an application for leave to appeal, together with an application for an extension of time, on 26 February 2004. That application was filed well outside the 7 day period provided for under O 52 r 10 of the Federal Court Rules ("the Rules"). 11 As mentioned above, the orders made by Goldberg J dismissing the application for orders nisi, and ordering the applicant to pay the respondent's costs, were clearly based on the applicant having not attended the hearing. Those orders were not affected by any error. 12 Counsel for the respondent submitted that it was not appropriate for the applicant to seek leave to appeal from the orders of Goldberg J. If she wished to challenge those orders, the appropriate avenue under the Rules would be to make an application in the Court's original jurisdiction for the orders to be set aside, and the proceedings reinstated. Of course, the applicant would be required on such an application to establish an arguable case for the grant of relief. 13 Counsel for the respondent further submitted that, in any event, there was no basis on which it could be said that the Tribunal's decision was affected by jurisdictional error. There was no evidence from the applicant that was capable of establishing that she had been denied an opportunity to comment on the relevant DFAT cable. On the affidavit material filed by her, there was no prima facie or arguable case of denial of natural justice, or any other ground of review. The grant of leave to appeal would therefore be futile, because an appeal would have no prospects of success. 14 We consider that the submissions advanced on behalf of the respondent are plainly correct. For that reason, the application for an extension of time to seek leave to appeal is refused. We should add that if an extension of time were granted, leave to appeal would be refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 15 It goes without saying that the appeal must be struck out as incompetent. The applicant should pay the respondent's costs of the application. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Weinberg & Crennan.