M99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 687

FEDERAL COURT OF AUSTRALIA

M99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 687 Federal Court of Australia Act 1976 (Cth) Judiciary Act 1903 (Cth) Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 followed M18 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 127 distinguished M99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] FMCA 156 referred to 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 M99 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 374 OF 2004 CRENNAN J 28 MAY 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 374 OF 2004

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

BETWEEN: M99 of 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CRENNAN J

DATE OF ORDER: 28 MAY 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be refused. 2. The appellant 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 V 374 OF 2004

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

BETWEEN: M99 of 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CRENNAN J

DATE: 28 MAY 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT THE COURT: 1 The applicant seeks leave to appeal from the judgment of a Federal Magistrate in the Federal Magistrates Court given on 18 March 2004 (M99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] FMCA 156). The Federal Magistrate dismissed with costs the application, remitted from the High Court, for an order nisi for a constitutional writ. (The application for an order nisi related to a decision of the Refugee Review Tribunal ("the Tribunal") made on 1 September 2000.) 2 The background of the application briefly is as follows. The applicant is a citizen of India who, together with her two sons, arrived in Australia on 21 May 1996. She applied for a protection visa on 19 August 1996. The delegate of the respondent refused the application on 26 June 1997. The applicant applied to the Tribunal for review on 21 July 1997. The Tribunal affirmed the delegate's decision on 1 September 2000. 3 On 16 February 2001 the applicant joined representative proceedings in the High Court seeking declarations or constitutional writs: see Muin v Refugee Review Tribunal (2002) 190 ALR 601. Those proceedings were remitted to this Court pursuant to s 44(1) of the Judiciary Act 1903 (Cth) and further remitted to the Federal Magistrates Court. The application was heard on 24 and 26 February 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 24 March 2004. As a matter of law, 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. This case is distinguishable from M18 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 127 where a judgment made in respect of a remitted application was treated as a final order in circumstances where an amended application was filed in the Federal Court pursuant to s 39B of the Judiciary Act 1903 (Cth) and final orders were made by the judge hearing that application. The decision of the Federal Magistrate here was an interlocutory decision and therefore the applicant is required to seek leave to appeal from that decision: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 5 The principles to be applied in considering whether leave should be granted are those to be derived from a line of authority referred to 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 test 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 respondent today relied on this authority in support of a submission that the application for leave to appeal should be refused with costs. The grounds of appeal in the proposed notice of appeal are, in essence, that the Federal Magistrate was wrong in concluding there was no arguable basis for the application and that there had been a failure in the application to discharge the necessary evidentiary burden. 7 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 from an order nisi. Thus, there was no material before the Federal Magistrate which indicated a different outcome may have occurred had the applicant been given the opportunity to comment on country information which was before the Tribunal. Furthermore, the Federal Magistrate noted that: ". . . the critical finding of the [Tribunal] was that the applicant who declined to attend the hearing had not made credible claims to fear persecution from the authorities in India on the basis of her husband's alleged support of the Akali Dal Movement." 8 The Federal Magistrate was satisfied the applicant had not discharged the evidentiary burden on her. She did not provide material to the Court 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. 9 The applicant appeared in person today. She submitted it would be very "hard to go back." She did not identify jurisdictional error in the Tribunal decision or any error of law in the decision of the Federal Magistrate. 10 The Federal Magistrate's decision is not attended by any doubt sufficient to warrant its reconsideration. Accordingly, leave to appeal is refused. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan .