M100 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 688

FEDERAL COURT OF AUSTRALIA

M100 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 688 Federal Court of Australia Act 1976 (Cth) Judiciary Act 1903 (Cth) Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 M100 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] FMCA 156 Muin v Refugee Review Tribunal (2002) 190 ALR 601 NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 M18 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 127

M100 OF 2003 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 375 of 2004 CRENNAN J 28 MAY 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 375 OF 2004

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

BETWEEN: M100 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 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 V 375 OF 2004

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

BETWEEN: M100 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 (M100 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] FMCA 156). 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 23 February 1998. The Tribunal affirmed the decision of the Minister's delegate not to grant a protection visa. This was the third application for a protection visa which had been refused. The first was applied for on 2 November 1990. 2 The background of the application briefly is as follows. The applicant is a citizen of India who arrived in Australia some twenty-two years ago. He applied a third time for a protection visa on 10 March 1995. The delegate of the respondent refused the application on 28 June 1996. The applicant applied to the Tribunal for review on 26 March 1997. The Tribunal affirmed the delegate's decision on 23 February 1998. 3 On 16 July 1999 the applicant joined representative proceedings in the High Court: see Muin v Refugee Review Tribunal (2002) 190 ALR 601. These 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 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 24 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 (Cth). 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 an 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 respondent relied on this authority today in support of a submission that leave to appeal ought to 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 and/or a failure to comply with interlocutory orders providing for the filing of affidavit material in support of the application. 7 The Federal Magistrate found that the applicant alleged before him a denial of natural justice and procedural fairness arising because he had not been 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 the Tribunal came to a conclusion without relying on country information as it made a conclusion based upon the applicant's material. The Federal Magistrate found "Due consideration was given to the applicant's evidence but it was rejected." 8 The Federal Magistrate was satisfied the applicant had not discharged the evidentiary burden on him nor had he complied with interlocutory orders. He 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 today in person. He stated he did not wish to go back because he had "a hard time" in 1981. He also mentioned he has lived in Australia for twenty‑two years and has a son and two grandchildren in Australia. He did not deal with any jurisdictional error in the Tribunal's decision or point out 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.