Cisinski v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 998

FEDERAL COURT OF AUSTRALIA

Cisinski v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 998 PRACTICE AND PROCEDURE – appeal – interlocutory judgment – leave to appeal –issue of public importance Federal Court of Australia Act 1976 (Cth) s 24(1A) Migration Act 1958 s 253 Judiciary Act 1903 (Cth) s 78B Federal Court Rules O 52 r10(1) Constitution Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 cited Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246 cited Cisinski v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 507 referred to Malouf v Malouf (1999) 86 FCR 134 cited Versace v Monte [2002] FCA 781 cited KASCHIMIER CISINSKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W317 of 2002 LEE J 30 JULY 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W317 OF 2002

BETWEEN: KASCHIMIER CISINSKI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE OF ORDER: 30 JULY 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The respondent have leave to appeal from the orders made on 16 July 2004.

2. The appeal be expedited.

3. The respondent attend on the Registrar within 7 days to arrange an appointment for the parties to settle the index to the appeal book. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W317 OF 2002

BETWEEN: KASCHIMIER CISINSKI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE: 30 JULY 2004

PLACE: PERTH

REASONS FOR JUDGMENT LEE J: 1 This is an application by the respondent for leave to appeal from orders made by me in this matter on 16 July 2004 pursuant to reasons for decision delivered on 17 May 2004 (see: Cisinski v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 507). I have assumed, without deciding, that the parties have not erred in treating those orders as an interlocutory judgment under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). (See: Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246 at 248; Malouf v Malouf (1999) 86 FCR 134; Versace v Monte [2002] FCA 781). The grant of leave to appeal from such a judgment is governed by O 52 r 10(1) of the Federal Court Rules. 2 The respondent made an oral application for leave to appeal at the time the orders were made. I was not persuaded at that time that in all the circumstances it was appropriate to grant leave but allowed the respondent the opportunity to file further submissions within 7 days if the respondent intended to pursue the application. I directed that if the respondent filed submissions the applicant may file written submissions in reply by 30 July 2004 and that the application be determined on the papers. 3 Both parties filed submissions pursuant to the foregoing directions and I have considered the arguments raised in those submissions. 4 The remaining issue in the substantive application is a claim for damages for unlawful detention. The applicant has filed further affidavit evidence in support of that claim and the respondent is to file an affidavit in reply by 27 August 2004, after which a date for the hearing of that issue is to be fixed. In those circumstances normally it would be appropriate for the proceeding to continue and be finally determined before any appeal is commenced.