Fernando v Ruddock - [2000] FCA 1151

FEDERAL COURT OF AUSTRALIA
Fernando v Ruddock [2000] FCA 1151
PRACTICE AND PROCEDURE – representative proceedings – application for extension of time to file and serve notice of appeal – whether group members bound by dismissal of previous applications – whether any reasonable prospects of success of appeal.
Federal Court of Australia Act 1976 (Cth), ss 4, 33A, 33C, 33ZB, 33ZC.
Migration Act 1958 (Cth).
International Covenant on Civil and Political Rights.
Federal Court Rules O 20, r 2; O 52, r 15.
Migration Regulations (Amendment) 1997 (SR 184 of 1997).
Migration Regulations (Amendment) 1997 (SR 279 of 1997).
De Silva v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 502, cited.
Macabenta v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 202, cited.
Wasantha v Ruddock [1999] FCA 1158, cited.
Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, cited.
Minogue v Human Rights & Equal Opportunity Commission (1999) 84 FCR 438, cited.
Minogue v Williams [2000] FCA 125, cited.
Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404, cited.
Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543, cited.
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, cited.
Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398, cited.
Zhang v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 384, cited.
Aronson and Dyer, Judicial Review of Administrative Action, 2^nd ed., 2000.
NAOMAL FERNANDO on behalf of 14 members of the Group, Gamini Wasantha [on behalf of all members of the Sri Lankan Humanitarian Entrants (Sub Class 435) Association] v PHILLIP RUDDOCK in his capacity as Minister for Immigration & Multicultural Affairs
A 24 of 2000
SACKVILLE, KATZ & KENNY JJ
17 AUGUST 2000
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 24 OF 2000

BETWEEN:

NAOMAL FERNANDO on behalf of 14 members of the Group, Gamini Wasantha [on behalf of all members of the Sri Lankan Humanitarian Entrants (Sub Class 435) Association]
APPLICANT

AND:

PHILLIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGES:

SACKVILLE, KATZ & KENNY JJ

DATE OF ORDER:

17 AUGUST 2000

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.The group members affected by the judgment (in addition to the applicant) are those persons set out in the schedule to the judgment.
3.The balance of the motion filed on behalf of the respondent on 6 April 2000 be stood over until a date to be advised.
4.Costs be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 24 OF 2000

BETWEEN:

NAOMAL FERNANDO on behalf of 14 members of the Group, Gamini Wasantha [on behalf of all members of the Sri Lankan Humanitarian Entrants (Sub Class…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 1151
Decision Date: 17 AUGUST 2000

CaseChat Overview and Summary

In the case of Fernando v Ruddock, the applicant, on behalf of a group of Sri Lankan Humanitarian Entrants, sought an extension of time to appeal from the decision of Finn J. The primary legal issue the court had to address was whether the applicant had demonstrated that any appeal would have a real chance of success. The applicant argued that the regulations breached the rules of natural justice and the International Covenant on Civil and Political Rights. The court, however, found that these arguments were unpersuasive, particularly in light of previous decisions of the Full Court.

The court further noted that the application for an extension of time was filed nearly seven months after the deadline, which was a significant factor against granting an extension. Additionally, the court highlighted the importance of resolving migration cases expeditiously, especially when they involve a class of persons. Delaying the proceedings could inadvertently extend the stay of individuals who have no lawful right to remain in Australia beyond the conclusion of the case. Consequently, the court was not convinced that the applicant had shown any realistic prospect of success on appeal, which was a crucial criterion for granting an extension of time.

Given the findings, the court dismissed the application for an extension of time. The court also noted that it was not entirely clear whether the dismissal of the application for an extension of time qualified as a "judgment given in a representative proceeding" under the Federal Court Act. Nevertheless, the court attached a list of group members who might be affected by the orders. The court reserved the question of costs until the remainder of the Minister’s motion was addressed.

Orders

Orders of the court

1. The application for an extension of time be dismissed.

2. The group members affected by the judgment (in addition to the applicant) are those persons set out in the schedule to the judgment.

3. The balance of the motion filed on behalf of the respondent on 6 April 2000 be stood over until a date to be advised.

4. Costs be reserved.

Background

Background to the litigation

What follows are the Court’s reasons for dismissing the application for an extension of time.BACKGROUND In November 1997, Gamini Wasantha, as representative of “all members of the Sri Lankan Humanitarian Entrants (Subclass 435) Association”, filed an amended application under Part IVA of the Federal Court of Australia Act 1976 (Cth) (“the Wasantha proceedings”). Mr Wasantha sought declarations that reg 7.1 of the Migration Regulations (Amendment) 1997 (Cth), SR No 184, 30 June 1997, and reg 10 and 12 of the Migration Regulations (Amendment) 1997 (Cth), SR No 279, 1 October 1997, were invalid insofar as they related to Sri Lanka. The application also sought associated relief, including an injunction restraining the respondent in those proceedings (the Minister) from implementing or otherwise giving effect to the impugned regulations. The regulations distinguished between temporary visa holders from Sri Lanka who had entered Australia prior to 1 November 1993 and those who had entered after that date. Before the regulations were made, generally speaking, temporary visa holders from Sri Lanka were treated in the same fashion regardless of their date of arrival in Australia. The regulations, in effect, required those who had arrived after 1 November 1993 to leave Australia by 31 July 1997, while those who had arrived earlier were eligible to apply for a new subclass of visa. The applicant in the Wasantha proceedings initially asserted that the regulations were void or liable to be set aside on six grounds. On 10 December 1998, the Minister filed a motion seeking orders dismissing the proceedings. In his supporting affidavit, the Minister’s solicitor noted that the regulations had been upheld by the Full Court in De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502. At the hearing before the trial Judge on 18 August 1999, the applicant abandoned four of the six grounds of challenge as unarguable, in view of the decisions of the Full Court in De Silva and Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202. The applicant pressed only two grounds before the trial Judge. These were the following:“The making of the Regulations in requiring the Applicant to have entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa which had effect as if it were an entry permit amounts to a breach of the rules of natural justice as the Applicant had a legitimate expectation that the Respondent would have considered the on going civil war and situation of political unrest in Sri Lanka before extending the subclass 435 visa for only those who arrived in Australia prior to 1 November 1993.The making of the Regulations in requiring the Applicant to have entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa as if it were an entry permit is contrary to the International Covenant on Civil and Political Rights to which Australia is a signatory.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The fourth matter relied on by Mr Howe was that the present application for an extension of time was not lodged until 4 April 2000, nearly seven months out of time (slightly less if s 33ZC(6) of the Federal Court Act is taken into account). This, too, is a factor strongly militating against an extension of time. It is important that migration cases be resolved expeditiously. This is especially so where the proceedings are brought on behalf of a class of persons. If the proceedings are unduly prolonged they may become a vehicle for extending the stay in Australia of persons who have no lawful entitlement to remain in this country beyond the determination of the proceedings themselves.CONCLUSION For the reasons we have given, the applicant should not be granted an extension of time in which to appeal from the judgment of Finn J. The appropriate order is that the application be dismissed. As we have explained, it is by no means clear whether an order dismissing the application for an extension of time is a “judgment given in a representative proceeding” for the purposes of s 33ZB of the Federal Court Act. Without resolving that question, we have attached to this judgment a list of the group members who may be affected by the orders. We shall reserve the question of costs until the balance of the Minister’s motion is dealt with.

Ratio Decidendi

Legal Principle Established

It follows that the applicant has not shown that any appeal would have any real chance of success. This is enough of itself to justify refusing the application for extension of time. We should briefly refer, however, to other considerations advanced by Mr Howe as reasons for refusing the application for an extension of time in which to appeal from the judgment of Finn J.OTHER CONSIDERATIONS Mr Howe relied on the orders made by Gyles J dismissing the first application for an extension of time. He contended that the orders bound the present applicant and group members since they were also members of the represented group in the application that had been determined by Gyles J. The orders made by Gyles J dismissing the application were an exercise of the appellate jurisdiction of the Court: Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543. In the ordinary course, as Wati itself demonstrates, any further appeal within the Court from the order dismissing the application would be incompetent. Subject to the operation of Part IVA of the Federal Court Act, it is not clear how a Full Court can entertain a second application for an extension of time without the order dismissing the first application being set aside: see Wati, at 549-552. No application has been made in the present proceedings to set aside the orders made by Gyles J: cf Wati, at 552. Some questions may arise as to the effect of the orders made by Gyles J in view of s 33ZB of the Federal Court Act. Section 33ZB provides as follows:“A judgment given in a representative proceeding:(a)must describe or otherwise identify the group members who will be affected by it; and(b)binds all such persons other than any person who has opted out of the proceeding under section 33J.” It is by no means clear whether an application for an extension of time to appeal against the dismissal of representative proceedings can itself be classified as a “representative proceeding” for the purposes of s 33ZB of the Federal Court Act. The expression “representative proceeding” is defined in s 33A to mean a proceeding commenced under s 33C of the Federal Court Act. Clearly enough, an application for an extension of time in which to appeal from a judgment dismissing a representative proceeding is not within that definition. The term “proceeding”, however, is defined to include an “incidental proceeding …in connexion with a proceeding”: Federal Court Act, s 4. See also the definition of “judgment” in s 4. It is perhaps arguable that the extended definition of “proceeding” produces the result that an application for an extension of time for an appeal is itself a representative proceeding. If the application for an extension of time is a representative proceeding, a procedural question arises. Section 33ZB(a) of the Federal Court Act requires a judgment given in a representative proceeding to describe, or otherwise identify, all group members who will be affected by it. The orders made by Gyles J did not satisfy this requirement, perhaps because the application was not seen as a representative proceeding. It is not clear whether the absence of a description or identification of the group members in accordance with s 33ZB(a) deprives orders made in a representative proceeding of the binding effect they would otherwise have pursuant to s 33ZB(b).

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 24 OF 2000

BETWEEN:	NAOMAL FERNANDO on behalf of 14 members of the Group, Gamini Wasantha [on behalf of all members of the Sri Lankan Humanitarian Entrants (Sub Class 435) Association] APPLICANT
AND:	PHILLIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	SACKVILLE, KATZ & KENNY JJ
DATE OF ORDER:	17 AUGUST 2000
WHERE MADE:	CANBERRA