Nasi v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCAFC 242

FEDERAL COURT OF AUSTRALIA

NASI v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 242

NASI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1415 OF 2003

EMMETT, STONE AND ALLSOP JJ
3 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1415 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NASI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	EMMETT, STONE AND ALLSOP JJ
DATE OF ORDER:	3 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT DIRECTS THAT:

1.The notice of appeal filed on 11 September 2003 be treated as an application for leave to appeal. 

THE COURT ORDERS THAT:

1.The application for leave to appeal be denied. 

2.The applicant pay the respondent’s costs. 

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 1415 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NASI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	EMMETT, STONE AND ALLSOP JJ
DATE:	3 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment of a judge of this Court dismissing a notice of motion.  The background is that the appellant commenced proceedings in this Court seeking review of a decision of the Refugee Review Tribunal (‘Tribunal’) affirming a decision of a delegate of the respondent Minister not to grant the appellant a protection visa under the Migration Act 1958 (Cth).

2. As the primary judge explained in his reasons for judgment ([2003] FCA 895), the first directions hearing on the primary application was fixed for 23 July 2003. The appellant did not appear and the primary judge dismissed her application and ordered that she pay the respondent’s costs. The next day the appellant filed a notice of motion seeking that the order of dismissal be set aside. In her supporting affidavit the appellant explained that she had been 20 minutes late for the directions hearing because she had difficulty in finding the Court building and because her poor English hindered her attempts to obtain directions. The learned primary judge noted, at [4]:

   ‘Obviously the case is one in which, in normal circumstances, the order of dismissal would be set aside:  it would be a gross injustice to deprive an applicant of her day in Court only because she could not find the courtroom and arrived 20 minutes late.’ 

   However, his Honour accepted the respondent’s submission that the appellant’s application was doomed to fail in any event and for that reason decided that the order of dismissal should not be set aside. 

3. The background to the appellant’s application to the Tribunal is succinctly set out at [7] – [21] of the primary judge’s reasons.  His Honour noted that before him the appellant ‘said simply that the Tribunal made a mistake and she hopes that the Court will give her the decision she seeks.’  His Honour concluded that the appellant was basically seeking merits review of the Tribunal’s decision and that ‘if the application were heard … it would be dismissed’.  In oral submissions at the hearing of this appeal the appellant frankly said that she did not want to return to China because of the difficulty she would have in obtaining employment.  This is also a plea for merits review which this Court has no jurisdiction to entertain.

4. We agree with his Honour’s assessment of the appellant’s application but, in any event, his refusal to set aside the dismissal order was properly within his discretion; House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.

5. The respondent objects to the competency of the appeal on the basis that the judgment appealed from is interlocutory and that the requisite leave to appeal, under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) has been neither sought nor granted. It is sufficient to note that, treating the notice of appeal as an application for leave to appeal, the appeal must fail. Counsel for the respondent has accepted that it is appropriate to deal with the matter in this way. We would therefore deny leave to appeal and order that the appellant pay the respondent’s costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             3 November 2003

Counsel for the appellant:	The appellant appeared in person with the assistance of an interpreter.
Counsel for the respondent:	A J McInerney
Solicitor for the respondent:	Sparke Helmore
Date of hearing:	3 November 2003
Date of judgment:	3 November 2003