M94 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 667

FEDERAL COURT OF AUSTRALIA

M94 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 667 MIGRATION – Application for leave to appeal a Federal Magistrate's refusal to grant an order nisi for writs of prohibition and certiorari – No evidence led before the Federal Magistrate – Federal Magistrate's decision not attended with doubt – Application for leave to appeal refused. Federal Court of Australia Act 1976 Judiciary Act 1903 (Cth) Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 followed

M94 OF 2003 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 368 of 2004 CRENNAN J 27 MAY 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V368 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY MCINNIS FM

BETWEEN: M94 of 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CRENNAN J

DATE OF ORDER: 26 MAY 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is refused. 2. The applicant is to pay the respondent's costs of this proceeding. 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 V368 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY MCINNIS FM

BETWEEN: M94 of 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CRENNAN J

DATE: 27 MAY 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal from the judgment of a Federal Magistrate in the Federal Magistrate's Court given on 18 March 2004 (M94 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] FMCA 161). The Federal Magistrate refused, with costs, the application remitted from the High Court, for an order nisi for constitutional writs. (The application for an order nisi related to a decision of the Refugee Review Tribunal ("the Tribunal") made on 28 February 1998. The Tribunal affirmed the decision of the Minister's delegate not to grant a protection visa.) 2 The background of the application briefly is as follows. The applicant is a citizen of Sri Lanka who arrived in Australia on 18 November 1998. She applied for a protection visa on 8 December 1998. A delegate of the respondent refused her application on 6 January 1999. On 27 January 1999, the applicant applied to the Tribunal for review of the delegate's decision. The Tribunal affirmed the delegate's decision on 15 December 2000. 3 On 24 April 2001 the applicant joined representative proceedings in the High Court: see Muin v Refugee Review Tribunal (2002) 190 ALR 601. An application for an order nisi for the writs of prohibition and certiorari was filed with the High Court on 15 May 2003. On 18 September 2003, those proceedings were remitted to this Court pursuant to s 44(1) of the Judiciary Act 1903 (Cth) and on 5 December 2003 further remitted to the Federal Magistrate's Court. The application was heard on 24 and 26 February 2004 and the Federal Magistrate delivered his judgment refusing the application for an order nisi on 18 March 2004. 4 A notice of appeal and an application for leave to appeal were filed on 23 March 2004. An order refusing an application for an order nisi is an interlocutory order: see NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297. Accordingly, the applicant is required to seek leave to appeal from the decision of the Federal Magistrate: s 24(1A) of the Federal Court of Australia Act 1976. 5 The principles to be applied in considering whether leave should be granted are those stated by the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398. In determining whether leave to appeal from the interlocutory decision should be granted, the tests to be satisfied are whether the decision at first instance was attended with sufficient doubt to warrant its reconsideration by an appellate court and whether substantial injustice would result if leave to appeal were refused. 6 The Federal Magistrate found that the applicant alleged before him a denial of natural justice and procedural fairness arising because she was not given an opportunity to comment on country information, which the Tribunal considered. The Federal Magistrate noted no particulars were provided of any denial of natural justice and no affidavit material was filed in support of the application for an order nisi. Thus, there was no material before the Federal Magistrate, which indicated a different outcome might have occurred had the applicant been given the opportunity to comment further on country information, which was before the Tribunal. In any event, the Federal Magistrate noted: "It is noted in the [Tribunal] decision that country information was given to the applicant about changed circumstances, the JVP, relationship between the PA and the UNP and the availability of state protection." It does not appear that the applicant contended to the contrary. 7 The Federal Magistrate was satisfied the applicant had not discharged the evidentiary burden on her nor had she complied with interlocutory orders made by consent in relation to the preparation of the application for an order nisi. Whilst she had filed and served an outline of submissions she had not filed and served any affidavits in support of the application for an order nisi. She did not provide any evidence to the Court which could have established an arguable case of jurisdictional error which would have enabled the Court to grant the order nisi sought. In those circumstances, the Federal Magistrate refused the application for an order nisi with costs. 8 According to the proposed notice of appeal the applicant seeks an order under s 39B of the Judiciary Act 1903 (Cth) on the ground that the Federal Magistrate: ". . .erred in law in not finding that the applicant (sic) grounds of review were made out and granting the appropriate relief." No particulars are provided. 9 The applicant appeared in person today. She said she did not wish to return. She was unable to advance any arguments about jurisdictional error or identify any error of law in the Federal Magistrate's decision. 10 The Federal Magistrate's decision is not attended by any doubt which would warrant its reconsideration. Accordingly, the application for leave to appeal his decision is refused with the applicant to pay the respondent's costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan.