Applicant S411/2003 v Minister for Immigration & Multicultural Affairs [2007] FCA 623

FEDERAL COURT OF AUSTRALIA

Applicant S411/2003 v Minister for Immigration & Multicultural Affairs [2007] FCA 623 APPLICANT S411/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NSD 235 OF 2007

EDMONDS J

2 MAY 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 235 of 2007

BETWEEN: APPLICANT S411/2003

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EDMONDS J DATE OF ORDER: 2 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The applicant pay the first respondent's costs of the appeal. 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 NSD 235 of 2007

BETWEEN: APPLICANT S411/2003

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EDMONDS J

DATE: 2 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an application for leave to appeal from a judgment of the Federal Magistrates Court (Smith FM) dismissing an application for review of a decision of the second respondent ('the Tribunal') dated 23 January 1997 affirming a decision of a delegate of the first respondent ('the Minister') made on 31 March 1994 to refuse the applicant a protection visa.

The Leave Application 2 In support of his application for leave to appeal, the applicant filed an affidavit sworn by him together with a draft notice of appeal. 3 During the course of the hearing the applicant informed me that he had been informed by the Registry that the judgment of the Federal Magistrates Court was interlocutory and that he would therefore need to apply for leave to appeal the judgment in this Court. There is authority that an order refusing an application for an order nisi is an interlocutory order: Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 180. 4 This proceeding commenced as an application for an order nisi in the High Court of Australia which, by order of a judge of that court, was remitted to this Court and then, by order of a judge of this Court, transferred to the Federal Magistrates Court. It was accepted below that O 51A of the Federal Court Rules ('the Rules') would apply to the remitted matter, in the absence of the Federal Magistrates Court having rules which specifically address applications for orders nisi remitted by the High Court of Australia (see Federal Magistrates Act 1999 (Cth), s 43(2)(b), and Federal Magistrates Court Rules 2001 (Cth), r 1.05(2)). His Honour observed that under O 51A r 5 a remitted application for an order nisi is normally determined on the merits of the applicant's entitlement to final relief by way of Constitutional writs, and not whether he has an arguable case. The preliminary issue is only addressed if the Court makes an order under O 51A r 5(2). 5 At [7] his Honour said: 'In the present case, no order under r.5(2) was made in the Federal Court before the matter was remitted to this Court, and no order under that rule was sought nor was made in this Court. Given the above chronology, and the implications of the new time limits introduced by the Migration Litigation Reform Act 2005 (Cth), I consider that it is not appropriate for me to limit the nature of my consideration to the preliminary issue. I shall therefore allow r.5(1) to take effect, and have today addressed the final merits of the applicant's entitlement to relief in relation to the Tribunal's decision which is the subject of the proceeding.' 6 Order 51A r 5 of the Rulesprovides: ' (1) Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge: (a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and (b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute. (2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.' 7 In NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 377, Whitlam and Kiefel JJ, in considering a purported appeal against a judgment, noted (at [2]) that the primary judge did not advert to O 51A r 5 and concluded that 'it may be accepted that he heard the application as if it were an application for final relief'. However, their Honours said (at [3]): 'Nonetheless, no order nisi was made and the only application formally before Wilcox J remained one for such an order. An order refusing an application for an order nisi is an interlocutory order: Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 180. The order pronounced by Wilcox J can only be regarded as such an order.' 8 The third member of the Full Court in NAHQ, Moore J, at [6] entertained some doubts whether the judgment to which the appeal related was interlocutory. 9 In Applicant S422/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 138 FCR 151, Dowsett and Lander JJ, North J preferring not to express a view on the issue, said (at [35] – [36]): '[35] One further matter requires comment. Counsel for the Minister submitted that if the appellant did not require an extension of time in which to appeal, the order under appeal should be treated as an order refusing an application for an order nisi. Such orders have traditionally been considered to be interlocutory, therefore necessitating leave to appeal. See Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 67 ALJR 389 at 390. It occurred to us in the course of argument that the terms of O 51A r 5 of the Federal Court Rules may have changed the nature of an application for an order nisi remitted to this Court by the High Court. That order provides: (1) Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge: (a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and (b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute. (2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply. [36] We were referred to the Full Court decision in NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 377. The majority (Whitlam and Kiefel JJ) concluded that notwithstanding the provisions of O 51A r 5, a decision refusing an order nisi in a remitted matter was an interlocutory judgment and therefore not subject to appeal as of right. In the absence of any submissions to the contrary, we should follow that decision. Nonetheless we see some substance in the doubts expressed by Moore J in his reasons for judgment in NAHQ.' 10 In Applicants S61 of 2002 v Refugee Review Tribunal & Anor (2004) 136 FCR 122, Branson J, with whose reasons Moore and Emmett JJ agreed, said (at [39]): '[39] In view of the different views given expression in NAHQ and Applicant S422, this Full Court is not, as it seems to me, restrained by the usual rule of deference from giving effect to its own view as to whether the judgment sought to be appealed from in this case is an interlocutory judgment or a final judgment.' 11 Her Honour went on (at [40]): '[40] As indicated above, I do not doubt that his Honour intended by his order to dismiss on the merits the appellants' application for writs of certiorari and mandamus. In my view, no question arises as to the power of his Honour to make an order with the effect intended by his Honour. It does not matter, as it seems to me, whether his Honour is to be understood as having proceeded under an authority implicit in O 51A r 5, or under O 19 r 1 having impliedly waived the requirement for the filing of a notice of motion. However, for the reasons given above, I am satisfied that O 51A r 5 gave his Honour adequate authority to proceed as he did.' 12 Similarly, I do not think there is any doubt that O 51A r 5 gave his Honour below adequate authority to proceed as he did. In the circumstances, I am of the view that the judgment below is final and not interlocutory and that the applicant does not require leave to appeal. I therefore propose to treat the applicant's leave application together with his draft notice of appeal as a competent appeal.