S 336 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 191

FEDERAL COURT OF AUSTRALIA

S 336 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs  [2004] FCA 191

S 336 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL
AND INDIGENOUS AFFAIRS
N2522 of 2003

JACOBSON J
SYDNEY
2 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2522 of 2003

BETWEEN:	S 336 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	2 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

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	N2522 of 2003

BETWEEN:	S 336 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	2 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of Emmett J given on 4 December 2003.  Application is also made for an extension of time to file the application.  His Honour made an order dismissing the application pursuant to O10 r7(2) of the Federal Court Rules on the basis that the applicant had failed to comply with a direction which his Honour made on 27 October 2003.  The application before me is supported by an affidavit sworn by the applicant on 30 January 2003.  It was filed on 6 February 2004. 

2. The applicant is in detention and has been in detention for approximately 14 months.  The effect of his affidavit is to seek further time within which to put documents before the Court in support of the application.  He says that he does not have legal assistance and that he wants time to obtain legal assistance. 

3. In order to deal with this application it is necessary for me to say something about the background of the proceedings.  Emmett J did so in his reasons for judgment of 4 December 2003.  The applicant is, as his Honour observed, a citizen of Pakistan who arrived in Australia on 11 April 1990.  He did not lodge an application for a protection visa until approximately four years after his arrival.

4. In 1996 a delegate refused the applicant's application for a grant of a protection visa and the applicant sought review by the Refugee Review Tribunal  (“the RRT”) but the decision of the Tribunal given on 17 October 1997 affirmed the delegate's decision not to grant a visa. 

5. The applicant then became a party to what is usually described as a class action in the High Court of Australia.  It is unnecessary to set out the detail of the steps taken in relation to those proceedings.  The proceedings were commenced in the High Court on 19 June 2003.  They were remitted to this Court by an order made by her Honour Justice Gaudron and apparently amended by Justice McHugh.  The effect of the remittal orders made was that the proceeding commenced in the High Court on 19 June 2003 ceased to be part of the class action and was remitted to the Federal Court upon the basis that any proceedings commenced before 20 June 2003 would be remitted to the Federal Court. 

6. Justice Emmett at [3] of his judgment refers to an order which he made on 27 October 2003 that the applicant file and serve on or before 24 November 2003 a statement of contentions of relevant facts and law and any affidavits upon which he intended to rely at the hearing.  His Honour made this order because, when the proceedings were remitted from the High Court no order nisi had been made and indeed there was no evidence before the High Court which disclosed any basis upon which the applicant wished or may wish to contend that there was a relevant error of law.

7. His Honour Justice Emmett noted in [3] of his judgment that on 25 November in purported compliance with the direction of 27 October 2003, the applicant filed an unparticularised affidavit which simply made assertions as to why he should be granted a protection visa.  There was, as his Honour observed, no ground stated in the affidavit upon which the decision of the RRT could be reviewed by the Court.

8. His Honour, at [5] – [8] of his decision, refers to the reasons of the RRT for affirming the delegate's decision to refuse the grant of a protection visa.  It is unnecessary for me to set out the matters to which his Honour referred but it is important to note that at [8] his Honour stated that there was nothing on the face of the reasons to indicate any error on the part of the RRT and that there was nothing advanced by the applicant in the documents put forward in purported compliance with the direction made by Emmett J to indicate any jurisdictional error on the part of the Tribunal. 

9. Emmett J therefore observed at [8] of his judgment that the application was doomed to failure.  His Honour then stated at [9] that having regard to the failure of the applicant to comply satisfactorily with the directions made on 27 October 2003 the application would be dismissed in the exercise of his Honour's discretion pursuant to O10 r7(2).

10. It is plain that the decision of Emmett J on 4 December 2003 was interlocutory.  This is so for two reasons.  Firstly, no order nisi has been made and the application was clearly an application for an order nisi which, of itself, must be an interlocutory application.  Secondly, the order made by his Honour pursuant to O10 r7(2) is an interlocutory order and not a final order.

11. It seems to me to be plain that this application must be dismissed because Emmett J's judgment is a discretionary judgment which was given on a matter of practice and procedure.  It has been established for more than 50 years that tight reign must be kept upon such orders, otherwise there would be disastrous consequences for the proper administration of justice. 

12. In a recent decision of a Full Court of Heerey, Stone and Bennett JJ in ABB PowerTransmissions Pty Ltdv Australian Competition and Consumer Commission, (2003) FCAFC 261, the Court referred to the decision in In re The Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at [23] and at [24] their Honours said that the observations of Sir Frederick Jordan made more than 50 years ago are as compelling today as they were in 1946.

13. The applicant appeared before me in person and I have taken into account the fact that he may be disadvantaged by the fact that he is in detention and that he appears in person.  However, it seems to me that the history of the proceedings really provides a complete answer to what he has put to me today.  He pleaded for further time and said that he had been denied opportunity to obtain legal advice. 

14. Mr Andreas Markus, who appeared for the Minister, very fairly conceded that one should not under estimate the difficulties of persons in detention obtaining legal advice.  However, there is simply no evidence before me, nor indeed has anything been put to me to show why no advice was obtained before the proceedings were commenced and, indeed, why there has been no legal advice obtained since 1997 when the RRT affirmed the delegate's decision not to grant a protection visa.

15. The second reason why I would dismiss this application is that not only has no error of principle been disclosed in his Honour Emmett J's judgment but to the contrary, his Honour set out a proper basis for the exercise of his discretion pursuant to O10 r7(2).  It seems to me that the course taken by his Honour was plainly correct.  As I have said, his Honour took into account the reasons of the RRT which his Honour considered and he said that there was nothing in the reasons to disclose any error. 

16. I can only repeat that notwithstanding the very lengthy delay which has occurred since the applicant arrived in Australia, nothing has been put before the Court to indicate any proper basis for relief, notwithstanding the fact that the applicant has had more than ample opportunity in the period, in particular during the period prior to his detention some 14 months ago.

17. Mr Markus observed that even if I make an order today dismissing the application, the applicant is not estopped from bringing further proceedings if, notwithstanding his failure to obtain legal advice to this point, he does at some stage assert a basis for relief from the Court.  Whether, as a matter of discretion, this Court or another court would entertain such proceedings is not a matter which I need to determine today.  Here the question is whether there is any proper basis shown to me for the appeal to go ahead and, as I have said, there is no such basis whatsoever.

18. Finally, I should observe that the applicant put to me that there may be a claim of denial of procedural fairness on the ground that information provided by the Government of Pakistan to the Department about the position of Christians in Pakistan was not provided to him.  However, it is plain that even if there were documents dealing with this question which were not given to the applicant, he was provided with the substance of the information and that is all that is required to accord the applicant procedural fairness. 

19. For these reasons the orders which I will make are that the application be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Date:               5 March 2004

Counsel for the Applicant:	Applicant in person
Counsel for the Respondent:	A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 March 2004
Date of Judgment:	2 March 2004