Nawajh v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 967

FEDERAL COURT OF AUSTRALIA

Nawajh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 967

RAKESH NAWAJH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 847 OF 2004

GYLES J
9 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 847 OF 2004

BETWEEN:	RAKESH NAWAJH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	9 JULY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application is dismissed.

2.   The applicant is to pay the Minister’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 847 OF 2004

BETWEEN:	RAKESH NAWAJH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	9 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal out of time from a decision of Federal Magistrate Driver who on 14 November 2002 dismissed an application for judicial review of a decision of the Migration Review Tribunal which had been handed down on 20 June 2002.  The applicant was represented before the learned Federal Magistrate and his Honour dismissed the application on the merits in a reasoned decision.

2. The explanation given by the applicant for the delay in seeking leave to appeal is that he commenced proceedings in this Court for judicial review of the same Migration Review Tribunal decision having instructed one Mark Clisby to act on his behalf.  That application was filed on 19 June 2003.  Leave to discontinue that proceeding was granted by Selway J on 6 February this year with costs to be paid fixed at $1200.  This application for extension of time was filed on 24 May 2004.  The application annexes to it a draft notice of appeal which simply says:

   ‘(a)that the facts of my case was misunderstood.

   (b)I was forced to discontinue my case at Federal Court of Australia - South Australia by my Solicitor Mark Clisby.’

3. In his affidavit he said:

   ‘My solicitor Mark Clisby forced me to discontinue my case.’

   No further evidence has been given but from the bar table it is claimed that Mr Clisby sought $15,000 to pursue the application and that when that was not forthcoming discontinuance was arranged. 

4. It is submitted on behalf of the Minister that there has been no explanation for delay generally.  Even if account is taken of the other proceedings there is no explanation for the delay between 14 November 2002 and 19 June 2003 and there is no explanation for the delay between 6 February 2004 and 24 May 2004.  Furthermore, it is submitted that the form of the application does not comply with O 52 r 15, and that in particular the draft notice of appeal discloses no ground of appeal and thus that the grant of leave would be futile.

5. In my opinion the submissions for the Minister are well-founded.  There has been no satisfactory explanation for any of the periods of delay.  For my part I do not think that other proceedings commenced in this Court challenging the same decision are themselves a reason for delay in bringing this appeal.  A party represented before the learned Federal Magistrate and represented in the other proceedings in this Court is taken to make considered choices as to what to do.  One cannot simply leave an inchoate possible appeal swinging in the back pocket against the chance of success or failure in the other proceedings.  That is not the way in which litigation should be pursued.  In any event, as has been put on behalf of the Minister, the periods of delay both prior to and after that case have not been explained.  In seeking review more than two years after a decision, a heavy onus is required to be satisfied to make a case.

6. Furthermore, it is correct that the notice of appeal discloses no ground of appeal at all and in those circumstances the appeal would, in any event, be futile.  The application is refused.  The application is dismissed and the applicant is to pay the Minister's costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            9 July 2004

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	A Houlten of Sparke Helmore
Date of Hearing:	9 July 2004
Date of Judgment:	9 July 2004