FEDERAL COURT OF AUSTRALIA Applicants M123/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 695 MIGRATION – application for leave to appeal – no question of principle – appeal dismissed Décor Corporation Pty Ltd v Dart (1991) 33 FCR 397, referred to APPLICANTS M123/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 414 OF 2004 MARSHALL J 28 MAY 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 414 OF 2004 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: APPLICANTS M123/2003 APPLICANTS AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 28 MAY 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Leave to appeal is refused. 2. The applicants pay the respondent's costs of 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 VICTORIA DISTRICT REGISTRY V 414 OF 2004 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: APPLICANTS M123/2003 APPLICANTS AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE: 28 MAY 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicants have applied for leave to appeal from an interlocutory judgment of Federal Magistrate McInnis published on 24 March 2004. The applicants filed the application for leave to appeal on 31 March 2004. Consequently no extension of time is required. 2 When the matter was called on this morning there was no appearance for the applicants. The applicants had written to the Court seeking an adjournment of one month to obtain documents from Sri Lanka. The Court advised the applicants that they would need to attend Court today to make that application. It seems that they have chosen not to do so. 3 In the determination of an application of this type, the Court is bound to apply established principle, which involves satisfaction of a two-part test. The first part, which relates to the prospects of the proposed appeal, is whether, in all the circumstances, the decision (in this case, of the Federal Magistrate) is attended with sufficient doubt to warrant its reconsideration by a Full Court. The second part, which falls for consideration only after a positive determination of the first, is whether substantial injustice would result to the applicants if leave were refused, supposing the decision, the subject of the appeal, to be wrong; see Décor Corporation Pty Ltd v Dart (1991) 33 FCR 397. 4 The Federal Magistrate refused the applicants an order nisi to review a decision of the Refugee Review Tribunal ("the Tribunal"). Before the Court below the applicants submitted that they had been denied procedural fairness by not being afforded an opportunity to reply to country information relied on by the Tribunal in coming to its decision. However, the applicants did not submit any material to show that the outcome of the review application before the Tribunal would have been affected by any response they may have made to the country information. 5 The Federal Magistrate said at [21] to [24] that: "21. In my view the RRT in the present application did not specifically need to rely upon country information as a crucial factor to be taken into account in its reasons and for that reason alone the application would fail. In the alternative I am further satisfied that there is no evidence of a kind which would be appropriate applying the principles to which I have referred to persuade the Court that the outcome of the RRT decision would have been different had the applicant been given an opportunity to comment specially on country information. 22. I am otherwise satisfied that there is no arguable basis for the application and accept the respondents' submissions that the applicant has failed to discharge the necessary evidentiary burden required in an application of this kind. Applying the principles to which I have been referred I am satisfied the applicant has not provided material of a kind which would enable the Court to grant the order nisi sought. 23. Arguments were advanced in relation to an extension of time and given my finding in relation to the lack of an arguable basis for the application, it is not necessary for me to consider the matter in further detail save that in the circumstances I was prepared to allow the application to be entertained and further prepared to permit reliance to be placed on an application for mandamus. 24. Although arguments were advanced in relation to Anshun estoppel it is my view that having regard to my current finding it is no necessary for me to decide that issue. I do note in passing the submission made that in matters of this kind where there has been a Federal Court application filed and by consent the application dismissed, that re judicata or issue estoppel may still apply notwithstanding the difficulties encountered by determining what had been necessarily decided (See Somanader & Ors v Minister for Immigration & Multicultural Affairs & Anor (2000) 178 ALR 677).I accept however that there are some difficulties in identifying the cause of action in question which ultimately needs to be determined by matters of substance rather than by the form of the particular proceeding or the way in which it is pleaded. It is not necessary for me to examine in detail the grounds relied upon before the Federal Court and compare those to the grounds now sought to be relied upon in any event as I have decided that there is no arguable basis for the application to succeed for the reasons given." 6 In my view the reasoning of the Court below as set out above was correct. The judgment, in respect of which leave to appeal is sought is not attended with any doubt and does not warrant reconsideration by a Full Court. In my view it is not open to dispute. 7 It follows that the applicants have failed to satisfy the first part of the test which must be overcome in cases of this type where leave to apply from an interlocutory order is sought. Accordingly, leave to appeal should be refused. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 28 May 2004 There was no appearance for the Applicants Counsel for the Respondent: Maria Ngo Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 28 May 2004 Date of Judgment: 28 May 2004