Applicants S311 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

The case before the court is an application by five members of a family for an extension of time to file and serve a Notice of Appeal from a decision of Branson J. The application arises because the applicants did not file and serve a Notice of Appeal within the required 21 days as stipulated by O 52 r 15 of the Federal Court Rules. The applicants' claims for protection visas were derivatively based on the husband and father's claim for asylum in Australia, asserting a well-founded fear of persecution if he returned to Colombia. The delegate of the Minister for Immigration and Multicultural Affairs had previously refused their protection visas, a decision which was reviewed by the Refugee Review Tribunal. The Tribunal found the applicant had a well-founded fear of persecution, but did not agree that the fear was based on any of the reasons outlined in Article 1A(2) of the Refugees Convention.

The central legal issues addressed by the court were whether the application for an extension of time was permissible and whether the doctrine of res judicata applied to bar the applicants' appeal. The applicants argued that their application for review under section 39B of the Judiciary Act 1903 constituted a fresh basis of litigation, analogous to the power under section 75(v) of the Constitution, and therefore was not barred by res judicata. The court, however, found that the application for an order nisi was an interlocutory order, requiring leave to appeal out of time, which the applicants had not sought. Furthermore, even if the applicants were treated as seeking leave to appeal from the interlocutory decision, the court held that granting leave would be futile as the appeal would be barred by res judicata. The reasoning in Somanader v Minister for Immigration and Multicultural Affairs was adopted, which held that the court has no discretion to allow a proceeding to continue if res judicata applies.

The court dismissed the application for an extension of time, holding that the application was incompetent and, even if construed as seeking leave to appeal, would be futile due to the bar of res judicata. The court further ordered that the applicants were to pay the respondent's costs.