Lam v Minister for Immigration and Multicultural Affairs

[2001] FCA 905

FEDERAL COURT OF AUSTRALIA

Lam v Minister for Immigration & Multicultural Affairs [2001] FCA 905

KWONG LEUNG LAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 986 of 2001

SACKVILLE J
SYDNEY
12 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 986 OF 2001

BETWEEN:	KWONG LEUNG LAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	12 JULY001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.To the extent necessary, the time for filing the Notice of Appeal in this matter is extended until 27 June 2001.

2.        The notice of motion filed on 27 June 2001 is otherwise dismissed.

3.        The costs of the motion will be the 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	N 986 OF 2001

BETWEEN:	KWONG LEUNG LAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	12 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is before the court a Notice of Motion (“the motion”) filed on 27 June 2001.  The motion seeks orders extending the time for filing an attached Notice of Appeal, or alternatively, granting the applicant (as I shall refer to him) leave to appeal from what is said to be an interlocutory judgment of Lehane J given on 1 September 2000.

2. When the matter was called there was no appearance for the applicant.  Mr Markus, however, who appeared on behalf of the respondent, helpfully conveyed the respondent's position in relation to the motion and the Notice of Appeal.

3. The background is as follows. The applicant instituted proceedings pursuant to Part 8 of the Migration Act 1958 (Cth) (“the Act”) seeking an order setting aside a decision of the Minister made, or purportedly made, pursuant to s 501A(2) of the Act. By that decision the Minister refused the applicant's application for a category of visa described as an 812 Transitional (Permanent) visa.

4. The application to Lehane J was made on three grounds:

   · The first was that the Minister lacked jurisdiction to make the decision and that the decision was not authorised by section 501A of the Act.

   ·    The second was that the decision involved an exercise of discretionary power in accordance with policy, without regard to the merits of the particular case.

   ·    The third was that the decision was induced by actual bias on the part of the Minister.

5. A hearing took place before Lehane J on 10 August 2000.  The applicant indicated that he wished to rely on certain evidence in order to support the second and third grounds of the challenge to the Minister's decision.  For that purpose, a notice to produce certain documents was served on the Minister's representatives.  In consequence of the short time between service of the notice to produce and the hearing, no documents were produced.  In these circumstances, the parties sensibly agreed that it was convenient to deal initially and separately with the first ground of review which was said to involve a short point of statutory construction.  The other grounds were to be considered subsequently if the applicant was unsuccessful on the first ground.  Accordingly, Lehane J ordered that the following question be decided separately and before any further trial in the proceedings:

   “Is the applicant entitled to relief on the grounds stated in paragraph 1 of his amended application?”

6. In a judgment delivered on 1 September 2000, his Honour answered that question "No".  He also made directions in relation to the trial of the remaining grounds of the application.

7. The matter was re-listed on 19 June 2001 before Stone J, for the purpose of hearing the remaining two grounds relied on by the applicant.  On that date, it appears that her Honour was informed that the applicant did not wish to proceed with those grounds.  The applicant’s approach was, at least in part, influenced by the decision of the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421.

8. The applicant apparently takes the view that there is a need to obtain special leave for an extension of time to appeal from what the motion describes as the “interlocutory judgment” of Lehane J given on 1 September 2000. That explains the form of the motion. The Notice of Appeal filed on 27 June 2001 indicates that the ground of appeal relied on is that Lehane J was in error in holding that the Minister had jurisdiction to make the decision under section 501A of the Act.

9. Mr Markus says that the position of the Minister is that the orders made by Stone J on 19 June 2001 were the final orders in disposing of the proceedings at first instance.  Accordingly, he accepts that the Notice of Appeal was filed within time and that the appeal is competent.  Mr Markus submits that, in these circumstances, the appropriate order is to dismiss the motion, although he also says that the Minister would not oppose an order granting an extension of time to the extent that might be thought necessary.

10. My present view is that the Notice of Appeal has, in fact, been filed within time.  Final orders in these proceedings were not made until 19 June 2001, when Stone J made the orders dismissing the proceedings.  Accordingly, it may well be enough simply to dismiss the motion and allow the appeal to take its course.  However, in order to avoid any doubt, given the Minister’s position, I shall make an order, to the extent that it may be necessary, extending time for filing the notice of appeal until 27 June 2001.

11. The orders that I make, therefore, are as follows:

    1.To the extent necessary, the time for filing the Notice of Appeal in this matter is extended until 27 June 2001.

    2.        The notice of motion filed on 27 June 2001 is otherwise dismissed.

    3.        The costs of the motion will be the respondent's costs of the appeal.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE J.

Associate:

Dated:             13 July 2001

The Applicant was unrepresented.

Solicitor for the Respondent:	Mr A Markus appeared on behalf of the Australian Government Solicitor
Date of Hearing:	12 July 2001
Date of Judgment:	12 July 2001