FEDERAL COURT OF AUSTRALIA Minister for Immigration & Citizenship v Abdul Manaf (No 2) [2009] FCA 993 Federal Court of Australia Act 1976 ss 25(1AA)(a) and (2)(b) Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 applied Siminton v Australian Prudential Regulation Authority [2008] FCAFC 112 applied MINISTER FOR IMMIGRATION AND CITIZENSHIP v ZAHARA ABDUL MANAF, JAMAIN MOHAMED AMIN, NUR LINA BINTE MOHAMED AMIN, MOHAMMED FAKHRI MOHAMED AMIN, MOHAMED RIZAL MOHAMED AMIN and MIGRATION REVIEW TRIBUNAL VID 200 of 2009 SUNDBERG J 3 SEPTEMBER 2009 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 200 of 2009 GENERAL DIVISION BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant AND: ZAHARA ABDUL MANAF First Respondent JAMAIN MOHAMED AMIN Second Respondent NUR LINA BINTE MOHAMED AMIN Third Respondent MOHAMMED FAKHRI MOHAMED AMIN Fourth Respondent MOHAMED RIZAL MOHAMED AMIN Fifth Respondent MIGRATION REVIEW TRIBUNAL Sixth Respondent JUDGE: SUNDBERG J DATE OF ORDER: 3 SEPTEMBER 2009 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for a stay be dismissed. 2. The respondents pay the appellant's costs (if any) of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 200 of 2009 general division BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant AND: ZAHARA ABDUL MANAF First Respondent JAMAIN MOHAMED AMIN Second Respondent NUR LINA BINTE MOHAMED AMIN Third Respondent MOHAMMED FAKHRI MOHAMED AMIN Fourth Respondent MOHAMED RIZAL MOHAMED AMIN Fifth Respondent MIGRATION REVIEW TRIBUNAL Sixth Respondent JUDGE: SUNDBERG J DATE: 3 SEPTEMBER 2009 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 31 August 2009 I made orders that the time within which the appellant may file and serve a notice of appeal be extended to 2 April 2009 and that the appeal be allowed. I said there should be no order as to costs. The orders were later varied so as to cure an oversight, by adding an order setting aside the orders of the Federal Magistrates Court and in lieu thereof ordering that the application to that Court be dismissed and that the applicants pay the Minister's costs of the application. Those orders were made in exercise of the Court's appellate jurisdiction: Federal Court of Australia Act 1976 ss 25(1AA)(a) and (2)(b). After the pronouncement of the initial orders counsel for the respondents applied for a stay. Not having had the opportunity to read my reasons for making those orders, counsel was unable at the time to formulate the grounds on which he relied for the stay. On my instructions, my associate advised the parties that I would determine the application on the papers. The respondents have now made written submissions in support of a stay pending an application for special leave to appeal to the High Court. They rely on Order 37 rule 10 of the Court's Rules as the source of power to grant the stay. See Siminton v Australian Prudential Regulation Authority [2008] FCAFC 112 (Siminton). The appellant has not filed submissions and neither consents to nor opposes the grant of a stay. 2 The respondents accept that the applicable principles are those stated in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 685 and Siminton at [7]. In Burgundy Royale Brennan J said that a stay of proceedings pending an application for special leave is an extraordinary jurisdiction, and an applicant must demonstrate exceptional circumstances before its exercise is warranted. He noted four factors relevant to the exercise of the discretion whether to grant a stay, three of which are relevant here. 3 The first is whether there is a substantial prospect that special leave to appeal will be granted. In my view the prospect is slight. The view that is opposed to mine, namely that adopted by the Federal Magistrate, is supported by no identifiable reasoning, as I have said in my judgment. 4 The second factor is whether the grant of a stay will cause loss to the respondent. No such loss is likely to be caused. 5 The third factor is where the balance of convenience lies. In this connection the respondents submit: … a stay should be granted to enable the benefit to them from the decision of the Federal Magistrates Court appealed from to be preserved pending any application for special leave. In particular the Respondents seek a stay so that the processing of the application that they have pending before the Migration Review Tribunal is not delayed or otherwise affected. The Respondents fear that the MRT may come to the view that the application to it was "not properly made" for the purposes of s 348(1) of the Migration Act so that the MRT is no longer under the duty imposed by that section to process it. The Respondents fear the MRT may respond to the judgment by not processing the application for review or terminating it. Was this to happen the Respondents would lose any prospect of having a successful outcome of their application for a visa. 6 Given my considered opinion that the Tribunal has no jurisdiction to entertain the respondents' application, and that an application for special leave has but a slight prospect of success, I do not think the balance of convenience factor relied on favours the grant of a stay. What the respondents urge me to do is to encourage the Tribunal to exercise a jurisdiction I consider it does not have. That is not a course that I think I should take. 7 The proper course for the Tribunal to adopt is to assume the correctness of my decision until it is shown to be wrong. That would involve not processing the application further pending the outcome of a special leave application. The Tribunal would not, as the respondents fear, terminate their application. That would pre‑empt the outcome of the special leave application. 8 For those reasons the matter relied on by respondents at [5] is not a consideration that points in favour of the grant of a stay. No exceptional circumstances have been shown. The first of the relevant factors point strongly against the grant of a stay. The second is neutral. The third does not favour the grant. 9 The application is dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 3 September 2009 Counsel for the Appellant: Pip Mitchell Solicitor for the Appellant: Clayton Utz Counsel for the Respondents: T Hurley Solicitor for the Respondents: Erskine Rodan and Associates Date of Submissions: 31 August 2009 Date of Judgment: 3 September 2009