Rahman v Dayeh

[2007] FCA 786

FEDERAL COURT OF AUSTRALIA

Rahman v Dayeh [2007] FCA 786

MOHAMMAD TABIBAR RAHMAN v VANESSA DAYEH, RICARDO ABUSAIL, COMMONWEALTH OF AUSTRALIA AND SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
NSD 460 AND NSD 461 OF 2007

MADGWICK J
24 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 460 OF 2007 AND NSD 461 OF 2007

BETWEEN:

MOHAMMAD TABIBAR RAHMAN
Applicant

AND:

VANESSA DAYEH
First Respondent

RICARDO ABUSAIL
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Fourth Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	24 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal and for an extension of time in NSD 460 of 2007 be refused.

2.The application for an extension of time in NSD 461 of 2007 be refused.

3.The applicant pay the respondents’ costs assessed in the sum of $1800.

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	NSD 460 OF 2007 AND NSD 461 OF 2007

BETWEEN:

MOHAMMAD TABIBAR RAHMAN
Applicant

AND:

VANESSA DAYEH
First Respondent

RICARDO ABUSAIL
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Fourth Respondent

JUDGE:	MADGWICK J
DATE:	24 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR

1. These matters are, respectively, an application for leave to appeal along with an application for extension of time in which to file and serve a notice of appeal from an interlocutory decision of Smith FM given on 25 January 2007 and an application for extension of time in which to serve a notice of appeal from a judgment of Smith FM given on 22 February 2007.

2. The judgments for which leave and extensions of time are sought arise from the same factual circumstances and the same set of proceedings in the Federal Magistrates Court.  It is for this reason that they are dealt with together.

3. The applicant wishes to appeal from the interlocutory decision of his Honour not to recuse himself following a motion brought by the applicant requesting that his Honour be disqualified.  The applicant also seeks to appeal from the substantive decision of his Honour which dismissed an application for review of a recommendation by a selection advisory committee not to employ the applicant in an Australian Public Service Level 4 position with the Department of Immigration and Multicultural Affairs (as it then was).

4. Pursuant to O 52 r 2AB(c) of the Federal Court Rules I ordered that these applications be dealt with without an oral hearing.  The applicant subsequently filed affidavits annexing draft notices of appeal in each matter.  The notices of appeal contain some additional material going to the reasons for which leave and extensions of time should be granted.  The respondents filed an outline of submissions covering both applications.

5. The applicant appeared without representation before Smith FM and is again unrepresented in these applications.  His submissions and draft notice of appeal are not easily comprehensible as to any ground of appeal or even clear reasons as to why the applications currently before the Court should be granted.  The applicant also fails to explain clearly his delay in bringing each of the appeals.  He seems to suggest that it was due to the failure of Smith FM to draw the time limit for appeal to his attention.

6. The respondents submit that neither of the judgments of Smith FM is affected by any legal error.  It is submitted that both are clearly and obviously correct for the reasons given by his Honour.  As such the proposed appeals are futile and the applications should be denied.

7. With respect to the interlocutory decision, it appears that no submissions were made by the applicant to his Honour as to why his Honour should disqualify himself, despite an invitation to do so.  His Honour said:

   The ground stated in the notice of motion [seeking disqualification] is that he [Mr Rahman] has “no confidence” in my continuing to constitute the Court in this matter.  This unparticularised state of mind in a litigant cannot, of itself, provide a reason why I should disqualify myself, but I have considered whether his lack of confidence might be based on any matter which would provide grounds for disqualification under doctrines of apprehended bias.  The principles in relation to such disqualification were recently applied by the High Court in Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55 in the judgments of Kirby and Crennan JJ from [110] and Callinan J from [171]. The issue I should consider is whether “a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.

8. His Honour correctly stated the test, and went on to apply the test in a manner which does not disclose any legal error.  Further, the applicant has not provided any additional reasons as to why his Honour should have recused himself nor as to why his Honour’s decision was incorrect.  The applications for leave to appeal and for an extension of time in which to appeal are refused.

9. The applicant has also failed to demonstrate any arguable appealable error of law made by his Honour in the final judgment in the matter.  The draft notice of appeal and additional submissions filed in support of this application are lengthy but do not disclose any ground of appeal such that the granting of an extension of time would be justified.  I agree with the submission of the respondents that any appeal would be futile in this matter.  The application for extension of time in this matter is also refused.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:        24 May 2007

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	No oral hearing
Date of Judgment:	24 May 2007