FEDERAL COURT OF AUSTRALIA NACU of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1444 NACU of 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 393 of 2004 HILL J 25 OCTOBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 393 OF 2004 BETWEEN: NACU of 2001 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HILL J DATE OF ORDER: 25 OCTOBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 393 OF 2004 BETWEEN: NACU of 2001 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HILL J DATE: 25 OCTOBER 2004 PLACE: SYDNEY REASONS FOR JUDGMENT HILL J: 1 Before the Court is a notice of motion filed by the applicant. The motion seeks orders effectively setting aside a notice of discontinuance of an appeal that had been heard some time ago by Whitlam J. A similar motion was filed on behalf of applicant NACT (the applicant's husband). It seems that in the Refugee Review Tribunal (the "Tribunal"), the cases of both the husband and wife were heard together. Although separate reasons for decision were given by the Tribunal, those reasons for decision are essentially the same. They refer to the same country information and make the same comments. It may be that there is some marginal difference in the way the facts are expressed although it does not seem that there is anything major. That suggests that there was not any difference in the Tribunal's mind between the two cases. 2 Both the husband and wife sought judicial review of the decision of the Tribunal. The applicant was heard before Whitlam J who dismissed both applications. His Honour was of the view that there was no jurisdictional error, although at the time his Honour heard the case, the High Court had not yet heard Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. While Whitlam J refers to the conflict of authority that existed at the time he heard the application, it was obvious that his Honour, in any event, decided that there was no jurisdictional error and that the application should be dismissed. 3 It seems that some considerable time elapsed before anything further was done on behalf of the husband and wife. Ultimately however, only the husband's case came before Jacobson J on a motion in identical terms to the present motion, seeking leave to revoke the discontinuance that had been filed on 24 September 2002. I note that Order 52 Rule 19(1A) of the Federal Court Rules provides that when a notice of discontinuance is filed and served under sub-rule (1), the appeal is abandoned. 4 The husband's case was heard by Jacobson J on 3 March 2004. His Honour considered first the question whether he had power to set aside a notice of discontinuance. His Honour, with perhaps some doubt, expressed the view that he did have power to reinstate the appeal, but on the basis that, as his Honour put it (at [4]): "the court, in an appropriate case, has inherent power to set aside a notice of discontinuance if it is necessary to prevent injustice." 5 His Honour then proceeded to consider the prospects of success of the husband in the event that the husband was allowed to have the discontinuance set aside and the appeal then heard by a Full Court. His Honour expressed the view that there was no jurisdictional error. This was notwithstanding an argument advanced before his Honour as well as before me that the Tribunal had erred in not applying the High Court's words in Chan v Minister for Immigration and Ethnic Affairs (1989-90) 169 CLR 379, which made it clear that a real chance of persecution could arise, notwithstanding that the risk to an applicant was 5 per cent or perhaps even less. The argument was that it was necessary for the Tribunal to quantify the risk and not as the Tribunal did in the present case, to use an unquantified expression such as a "low level" of fear. 6 In the meantime, an application for special leave to the High Court has been lodged on behalf of the husband, and inter alia, the application for special leave takes the point that the notice of motion should have been heard by a Full Court rather than a single Judge. This was not a matter that was raised, it would seem, before Jacobson J. However, that does not really absolve me for failing to consider it. May I say that subject to the issue of jurisdiction, comity requires that I follow the decision of Jacobson J which is not, in any sense, distinguishable unless I am satisfied that his Honour was clearly wrong. It is obvious that the two proceedings were heard together in the Tribunal and that the evidence in the one was used as evidence in the other. As I've mentioned, the decisions are virtually identical. 7 I do have some misgivings about the issue of jurisdiction. Part of the difficulty lies, I think, in understanding what the real basis for the motion is. Once the discontinuance has been filed, the proceedings are at an end. There is nothing that could at that stage go before a Full Court. While I think that there would exist power in an appropriate case to set aside a discontinuance where justice required that to take place, it is not immediately apparent to me how the application is one that really resides in the Full Court. If it did then I do not think that s 25 of the Federal Court Act 1976 would permit the Full Court jurisdiction to be exercised by a single Judge. Section 25, however, is headed: "Exercise of Appellate Jurisdiction" and subsection (1) provides that the appellate jurisdiction of the Court is to be exercised by a Full Court. There are certain exceptions to that, for example, applications for leave or special leave to appeal, extensions of time to institute an appeal and so on. 8 Clearly, if the notice of discontinuance was set aside it would be necessary for there to be an extension of time in which to institute an appeal, and that clearly could be heard by a single Judge. On the other hand, I think there is room for the argument that the mere giving of leave to withdraw the discontinuance is an exercise in the appellate jurisdiction, but the matter can certainly not said to be clear. I propose to adopt the same course as Justice Jacobson did and for the reasons his Honour gave as to matters of substance. That is to say, to dismiss the present application with costs. In one sense it can be said that his Honour didn't consider the issue of whether the matter should have been heard by a Full Court. This is the case because no one suggested that his Honour should consider the issue. 9 On the other hand, given that an application has been brought by the husband to the High Court for special leave to appeal, and if that appeal were granted, the effect of that High Court decision would reflect not only on the husband's case but also on the wife's, something must be said for the view that the two cases should be kept together rather than run at totally different and divergent directions. At least this will have some cost advantages to the parties. 10 The second reason for following Justice Jacobson's decision on the jurisdiction question is that his Honour has held, rightly or wrongly, that he had jurisdiction, albeit not really having considered the argument of whether the jurisdiction is properly an appellate jurisdiction. It seems to me better in the present circumstances if I decide consistently with his Honour's decision. 11 As I have said, there are advantages to both parties if the two cases remain in the same position so that in the event that the High Court either does not grant leave or grants leave and disallows the appeal, the matters can be completed without further litigation. Correspondingly, if the High Court grants leave and allows the appeal, the two matters can then proceed to a Full Court for hearing. As I have already indicated the orders I propose will be the same as the orders proposed by Justice Jacobson. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate: Dated: 12 November 2004 Counsel for the Applicant: M Newman Solicitor for the Applicant: Newman & Associates Counsel for the Respondent: Morgan Solicitor for the Respondent: Sparke Helmore Date of Hearing: 25 October 2004 Date of Judgment: 25 October 2004