Applicant A184 of 2003 v Minister for Immigration and Multicultural and... [2004] FCA 1076 | Case summary

REASONS FOR JUDGMENT 1 This matter highlights the procedural difficulties that can arise in cases of this nature. These difficulties are incomprehensible to unrepresented litigants such as the applicant. 2 On 15 April 2004 the applicant lodged with the Registry a document which purported to be a Notice of Appeal from a decision given by Mansfield J on 26 March 2004 in proceedings brought by the applicant on 1 April 2003 for the issue of the constitutional writs (the April 2003 proceedings). 3 On the same day, a Registry officer wrote to the applicant advising him that he was required to seek leave to appeal and that the time for seeking leave had passed. The Registry officer advised: 'If you wish to seek leave to appeal the decision of Justice Mansfield you should complete the following Notice of Motion stating what orders you would like the Court to make. You must also file an affidavit stating the reasons why you want to appeal the decision and the reasons why you were unable to file the documents within the seven day limit.' 4 On 21 April 2004 the applicant filed a Notice of Motion seeking: '1. An extention [sic] of time for lodgement of an appeal is granted against Justice Mansfield's Decision. 2. My application of appeal be accepted.' 5 The Notice of Motion was accompanied by an affidavit in which the applicant deposed that, on 4 April 2004, he received Mansfield J's decision which was given on 26 March 2004. He said he had been advised by his Migration Agent that the time limit for an appeal was 21 days. He said that there were jurisdictional errors involved in Mansfield J's decision. 6 The Court also accepted the draft Notice of Appeal on 21 April 2004. 7 The Notice of Motion and the affidavit were accompanied by a statutory declaration in which the applicant reiterated his claim that he did not receive Mansfield J's decision until 4 April 2004 and that he had been advised that he had 21 days in which to appeal. 8 In that statutory declaration, he argued why it was that the Refugee Review Tribunal (RRT) had fallen into error. 9 The first matter to be determined is whether the decision given by Mansfield J was interlocutory or final. 10 The respondent offered the concession that, since the decision of the Full Court of the Federal Court in Applicants S61 of 2002 v Refugee Review Tribunal (2004) 206 ALR 461; [2004] FCAFC 150, Mansfield J's decision could be treated as final and, in those circumstances, leave to appeal was not required and that, since the Notice of Appeal had been lodged on 15 April 2004, it was filed within the time prescribed by O 52 r 15 of the Federal Court Rules, and the appeal was competent. Whilst the concession was offered for the best reasons, I do not think that it should be accepted because the premise upon which the concession was offered, i.e. that Applicants S61 of 2002 v Refugee Review Tribunal applies to this case, is not correct. 11 In Applicants S61 of 2002 v Refugee Review Tribunal the applicants had applied in the High Court for the writs of certiorari and mandamus. The matter was remitted to the Federal Court. Lindgren J dismissed the application. 12 Lindgren J delivered reasons in which he concluded: 'For the above reasons the proceeding should be dismissed with costs'. His Honour's order was that the application be dismissed. The applicants filed a Notice of Appeal and the respondents objected to the competency of the appeal. The Full Court referred to O 51A of the Federal Court Rules, which governs the procedure for matters remitted to the Court by the High Court and, in particular, to O 51A r 5, which provides: ' 5 (1) Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge: (a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and (b) if satisfied that an order absolute should be made will not make the order nisi, but will proceed directly to make the order absolute. (2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.' 13 Branson J said of O 51A r 5 at [26]: 'Order 51 r 5 is plainly designed to allow the two stage process of an ex parte application for an order nisi followed, assuming the initial application to be successful, by an inter partes application for an order absolute, to be avoided in appropriate cases. By authorising the Court to hear all parties and to proceed directly to make an order absolute where satisfied that such an order should be made the rule, in my view, authorises the Court to hear and determine the application for the writ sought by the prosecutor ("applicant").' 14 Where an application has been remitted to this Court from the High Court, O 51A r 5 contemplates that the Court will hear the application for the order nisi and absolute simultaneously and, if the application is successful, make an order absolute without ever making an order nisi. However, the Court may order that that procedure not be adopted and, in that case, would hear the application for the order nisi separately. If the procedure in O 51A r 5(1) is adopted, the order made is a final order provided always that the application has been decided on its merits: Applicants S61 of 2002 v Refugee Review Tribunal at [40]. An unsuccessful prosecutor or respondent would be entitled to appeal as of right. If the procedure under O 51A r 5(2) is adopted in any particular case, and the application for an order nisi is dismissed, the order will be interlocutory. It does not finally dispose of the matter, in that it does not finally determine the parties' rights. The application will have been dismissed because the applicant could not establish an arguable case on the material then before the Court: Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 at 183. 15 Where the Court has only considered whether an order nisi should issue (O 51A r 5(2)) and the application has been dismissed, the prosecutor would need leave to appeal: Federal Court of Australia Act 1976 (Cth) s 24(1A). Of course, an unsuccessful respondent could not appeal at all. The respondent would be heard on the return of the order nisi. 16 As can be seen, Applicants S61 of 2002 v Refugee Review Tribunal was concerned only with the procedure in this Court on a matter remitted from the High Court on the hearing of an application for the constitutional writs. The order made on the hearing will be final or interlocutory depending upon the procedure adopted by the Court under O 51A r 5. 17 For reasons which will follow, Applicants S61 of 2002 v Refugee Review Tribunal is not relevant to this case because, in this matter, Mansfield J did not consider the merits of the application as if it were an application for an order absolute. 18 The applicant commenced the April 2003 proceedings in the High Court of Australia seeking the issue of the constitutional writs in respect of a decision of the RRT made on 29 September 1999. The application was brought nearly three and a half years after the RRT decision. 19 On 11 June 2003 Hayne J remitted the matter to this Court. On 2 December 2003 Selway J ordered the applicant, by 20 January 2004, to file and serve any Notice of Motion seeking an extension of time within which to file the April 2003 proceedings. He also ordered the applicant to file and serve an affidavit explaining the delay in filing the April 2003 proceedings and giving reasons why any extension should be granted. 20 The applicant did not comply with that order. On 12 March 2004 he filed a statutory declaration in which he said that he was a Tibetan of the Sherpa (Lama) clan who grew up in Nepal. His clan lives in Nepal because of a fear of persecution by the Chinese authorities in Tibet. He said that the RRT did not believe his claim that he was Tibetan but found, wrongly, that he was a Nepalese Sherpa. He said: 'Since the application at the Tribunal failed I was mentally disturbed. I had belief that I would get justice in Australia but the RRT findings made me to believe something else. After RRT I made an application to the federal court but due to no money and due to no income as well as no lawyer the applicant could not succeed. I made another application to the Minister for Immigration and multicultural Affairs and after several months, this application was also refused by the Minister for Immigration refusing to grant me a visa without the express reason. I had no other option that I could take other than remaining in Australia because of my statelessness. The High court was the only option for me to seek justice therefore this application was lodged. During the period of last 5 years I have been severely depressed due to my situation and I was not able to do anything. I have survived from the support of the friends and the community. I had nowhere to go and I still have nowhere to go. I can provide psychiatric assessment if the hon. court requests for it.' 21 On 12 March 2004 the time for complying with Selway J's order was extended until 22 March. On 19 March 2004 the applicant filed a Notice of Motion seeking an extension of time in which to file the proceedings. He filed yet another statutory declaration in which he deposed: 'Further to my statutory declaration sent earlier, the time lapse between my initial application and this application were following. I have been depressed since the RRT declined my application. Although I apply for the judicial review at the federal court, the application was dismissed because of me not being able to fund the proceedings. When I found out that the application is dismissed, I applied to the Minister for Immigration and Multicultural Affairs. When Minister decided to not to [sic] intervene, I applied to the court and this is the current application. I cannot to return to Nepal Even if I wish to because of the passport which has been seized by the Nepalese Government.' 22 The Notice of Motion seeking an extension of time to institute the April 2003 proceedings out of the High Court came on before Mansfield J on 26 March 2004. 23 It is clear, from the orders made prior to the hearing, the Notice of Motion filed, and from his Honour's reasons, that his Honour was considering whether or not an application for an extension of time within which to institute the proceedings should be granted. He referred to one of his earlier decisions in Applicants A64 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1142 in which he held that proceedings remitted by the High Court to this Court remained subject to the time limits prescribed by the High Court Rules 1952 (Cth) (High Court Rules), notwithstanding that the matter was to proceed in this Court. He referred to O 55 r 17 and O 55 r 30 of the High Court Rules which govern the time within which proceedings for the issue of certiorari (O 55 r 17) and mandamus (O 55 r 30) should be brought. Mansfield J found that the application for an extension of time had to fail for three reasons. First, because the applicant had not been able to demonstrate there was an arguable basis for asserting jurisdictional error on the part of the RRT. Secondly, because the applicant had not explained why the application had been brought belatedly. Thirdly, because the applicant had previously brought an application for judicial review which had failed and the current application for the issue of the constitutional writs was no more than an attempt to relitigate what had already been litigated. 24 In the course of his reasons, his Honour said at [3]: 'Clearly, the application is outside the time permitted by those rules. If no extension of time were granted, the orders sought in the nature of certiorari and mandamus could not be pursued. The order sought in the nature of an application for an order for prohibition would be pointless.' 25 He therefore refused the application for an extension of time. His Honour said at [9]: 'Accordingly, I refuse to grant the extension of time which is sought. I think it follows that the application itself is out of time and cannot succeed. In those circumstances, I propose to dismiss the application. His counsel has acknowledged that, in the light of that ruling, the application cannot meaningfully proceed. I formally dismiss it. I order that the applicant pay to the first respondent costs of the application. There will be no order for costs of the second and third respondent.' 26 The formal orders of the Court were: '1. The application is dismissed. 2. Applicant to pay to the first respondent costs of the application. 3. No order for costs of the second and third respondents.' 27 The formal orders do not reflect precisely the application before the primary judge. The application before the primary judge was for an extension of time within which to institute proceedings in the High Court. That was the application that Mansfield J ruled upon. The formal order provided for the dismissal of the proceedings. 28 However, in my opinion, the application before the primary judge was interlocutory in nature and the order dismissing the application was also interlocutory. Whilst Mansfield J considered the applicant's prospects of success on the application for the issue of the constitutional writs, he did so in the circumstances of a consideration of an application for an extension of time to bring those proceedings. He did not reach a decision on the merits but merely assessed the strength of the applicant's case for the purpose of the application before him to determine whether the applicant had an arguable case. The formal order does dismiss the April 2003 proceedings but only as a consequence of the refusal to extend time to bring the proceedings. 29 In Hall v Nominal Defendant (1966) 117 CLR 423, the High Court held that an order refusing an application for an extension of time within which to institute proceedings against the Nominal Defendant in respect of personal injuries suffered in a road accident was an interlocutory order. Looking at the substance of the proceedings before Mansfield J, the decision was an interlocutory one because it did not finally determine the rights of the parties: Licul v Corney (1976) 180 CLR 213 at 219 per Barwick CJ; Carr v Finance Corporation of Australia Limited (1981) 147 CLR 246. 30 Because the order was an interlocutory order, the applicant needs leave to appeal: Federal Court of Australia Act s 24(1A). For all of those reasons, Applicants S61 of 2002 v Refugee Review Tribunal has no application to these proceedings. 31 The procedure for an application for leave to appeal from an interlocutory order is governed by O 52 r 10 of the Federal Court Rules. That rule provides that the application should be made on notice which should be 'filed and served within seven days from the pronouncement of the interlocutory judgment from which leave to appeal is sought or within such further time as the Court or a Judge may allow': O 52 r10(2)(b). 32 I should treat the Notice of Motion seeking 'an extention [sic] of time for lodgement of an appeal is granted against Justice Mansfield's decision' as an application for an extension of time to seek leave to appeal from that decision. The Notice of Motion does seek an extension of time but does not seek leave to appeal. However, the respondent did not take that point and the respondent proceeded as if the applicant was seeking leave. The applicant did not identify the grounds upon which leave to appeal was sought. I think it would be appropriate to proceed upon the basis that the ground for leave to appeal is that identified as the ground of appeal in the draft Notice of Appeal. The ground is: '2. Presiding judge made errors on his decisions by dismissing my application without fully considering merrits [sic] of my application and refusing to accept me as a Tibetain [sic] refugee while I had a Tibetain [sic] green book (passport) and other documents.' 33 As I have already said, the applicant was unrepresented and unable apparently to speak English. The ground of appeal is quite imprecise. However, I think it might be construed as a complaint that Mansfield J failed to grant an extension of time within which to institute the proceedings in the High Court for the issue of the constitutional writs. 34 Two matters are not raised, not surprisingly, because the applicant is unrepresented. Properly advised, both would have been raised. 35 First, no argument was addressed as to whether the High Court Rules apply when an application brought in the High Court for the issue of the constitutional writs has been remitted to this Court for hearing and determination. 36 Secondly, no issue was taken with his Honour's observation that an order in the nature of prohibition would be pointless if orders in the nature of certiorari and mandamus could not be made. 37 Because neither the applicant nor the respondent addressed those issues, it would be inappropriate to decide the application solely by reference to those issues. I will simply record the arguments that, at some stage, need to be addressed in an application where the arguments are fully ventilated. 38 The order made by Hayne J remitting the matter to this Court was: '1 The further proceedings in this application for an Order Nisi for a Writ of Mandamus, a Writ of Prohibition and a Writ of Certiorari be remitted to the Federal Court of Australia, South Australia District Registry. 2 The application for an Order Nisi proceed in that Court as if the steps already taken in the matter in this Court had been taken in that Court. 3 The Deputy Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court. 4 The costs of today's application be the Minister's costs in the cause.' 39 Order 55 r 17 of the High Court Rules provides that an order nisi for a writ of certiorari shall not be granted unless the application for the order is made not later than six months after the date of the impugned judgment or order or within such shorter time as may be prescribed. 40 Order 55 r 30 of the High Court Rules requires a party seeking an order in the nature of mandamus to a judicial tribunal to bring that application within two months of the refusal of the tribunal to hear the matter 'or within such further time as is, under special circumstances, allowed by the Court or a Justice'. That rule itself allows for time to be enlarged. 41 The High Court Rules do not provide a time limit for applications for an order in the nature of prohibition. 42 Order 60 r 6 of the High Court Rules allows a Court or a Justice to enlarge the time appointed by the Rules 'for doing an act upon such terms, if any, as the justice of the case requires'. 43 For the reasons Dowsett J and I gave in Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89, I have doubts whether the High Court Rules apply to proceedings of this kind which have been remitted to this Court in terms of the order made by Hayne J. I do not need to address the matters raised in that decision again but I adhere to all that Dowsett J and I said in that case. See also Moore J in Applicants S61 of 2002 v Refugee Review Tribunal. 44 There are authorities to the contrary: Applicants A64 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs; Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054; Applicant S70 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 204 ALR 115. 45 Section 44 of the Judiciary Act 1903 (Cth) authorises the High Court to remit matters pending in the High Court to this Court and other courts. When a matter is remitted by the High Court, whether it is remitted under s 44(1), (2) or (2A) 'subject to any directions of the High Court, further proceedings in the matter, or in that part of the matter, as the case may be, shall be as directed by that court'. Those directions are confined to matters of procedure: Pozniak v Smith (1982) 151 CLR 38. 46 In Robinson v Shirley (1982) 149 CLR 132 at 136, Brennan J said that the remitter power was 'intended to facilitate the course of litigation rather than to enhance or diminish a plaintiff's rights or correspondingly alter a defendant's obligations'. See also Pozniak v Smith at 47 and State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579 at 586. 47 Whilst the proceedings were commenced in the High Court, they have been remitted to this Court to the intent that '[t]he application for an Order Nisi proceed in [this] Court as if the steps already taken in the matter in [the High] Court [have] been taken in [this] Court'. The only steps taken in the High Court are the issue of the proceedings and the remittal of the proceedings to this Court. 48 Paragraph 2 of Hayne J's order, 'as if the steps already taken in the matter in this Court had been taken in that Court', might be thought to be directed at least to the institution of the proceedings in the High Court. One would have thought that it was not directed to the order remitting the proceedings to this Court because the order remitting the application must be that of the High Court. Even if it were, the order would still include the step taken in the institution or commencement of the proceedings. 49 The institution of the proceedings is a step in the proceedings. It could be argued that Hayne J's order means that that step should be taken to have occurred in this Court. 50 If that argument were accepted, it would follow that Mansfield J's remarks in Applicants A64 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs at [18] as to the effect of Hayne J's order would not be followed. 51 Once the matter is remitted to this Court the matter is governed by the Federal Court Rules: O 51A. Order 51A r 2A provides: ' 2A The other Orders of these Rules apply, so far are [sic] they are relevant and not inconsistent with this Order, to a proceeding that involves a matter, or part of a matter, remitted by the High Court to the Court.' 52 There are no time limits in the Federal Court Rules governing the institution of proceedings for the issue of the constitutional writs. 53 Order 55 r 30 of the High Court Rules provides: 'An application for a writ of mandamus, or an order in the nature of mandamus, to a judicial tribunal to hear and determine a matter shall be made within two months of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Justice.' 54 The power given in O 55 r 30 to enlarge time under the High Court Rules is to be exercised by the Court or a Justice. The Court is the High Court and the Justice is a Justice of that Court: O 1 r 5. 55 The Court, it might be argued, cannot be this Court or a Judge of this Court. 56 Order 60 r 6 of the High Court Rules provides: ' 6 (1) A Court or Justice may enlarge or abridge the time appointed by these Rules or fixed by an order of the Court or a Justice for doing an act upon such terms, if any, as the justice of the case requires. (2) An enlargement of time may be ordered although the application for it is not made until after the expiration of the time appointed or fixed. (3) When the time for delivering a pleading or document, for filing an affidavit, answer or document or for doing an act is or has been fixed or limited by these Rules, or by a direction on or under a summons for directions or by an order of the Court or a Justice, the costs of an application to extend that time, and of an order on the application, shall be borne by the party making the application, unless the Court or a Justice otherwise orders.' 57 The same point may be made in respect of that rule. If a Justice of the High Court had fixed a time for doing an act in proceedings of this kind and then remitted the proceedings to this Court, one would not expect that a Judge of this Court would enlarge or abridge that time. Order 60 r 6 is like rules 17 and 30 of Order 55 and provides the High Court and Justices of that Court with power to make procedural orders. 58 The opening word in O 60 r 6 is the indefinite article not the definite article. 'The Court' in O 1 r 5 is the High Court. It might be said, therefore, that O 60 r 6 refers to courts other than the High Court. However, the use of the indefinite article might mean a Justice sitting in Chambers: O 1 r 5. See also Merkel J in Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 at [6]. 59 When a matter is remitted to this Court, the matter becomes, in all respects, subject to the procedures of this Court including those procedures provided for in the Federal Court Act and in the Federal Court Rules. In Applicants S61 of 2002 v Refugee Review Tribunal, Moore J said at [3] of his reasons: '… once a matter is remitted it becomes a proceeding in this Court to be determined, in all respects, in accordance with this Court's procedures: see Dinnison v Commonwealth of Australia (1997) 74 FCR 184 at 188-189; Cam Mui Chi v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 14 at 37-39 and SZ v Minister for Immigration & Multicultural Affairs (2000) 172 ALR 172 at [8]. Accordingly, whatever may have been the procedural requirements deriving from the High Court Rules, they have no relevance (subject to any direction that may have been made by the remitting High Court judge) and it is open to a judge of this Court to deal with the matter under O 51A r 5.' 60 It follows that there is, in my opinion, a respectable argument for the proposition that the applicant did not need an extension of time within which to appeal. 61 Indeed, the Full Court said recently in Applicant S70 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 182 at [15]: ' The application that is formally before us is an application for leave to appeal. Leave to appeal is presumably sought because it is thought that the order made by the primary judge was not a final order. There are two bases upon which that might be so. The first is that his Honour's order was an order refusing to extend time. As to that, there is a real question not yet answered as to whether the time limits under the High Court Rules are applicable to proceedings remitted to this Court: see Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89, at least where those proceedings do not themselves include an application to extend time or where the High Court has not directed that those limits remain applicable.' The point remains undecided. 62 The second argument was addressed in Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs where Merkel J held that it would be wrong to dismiss an application for prohibition because the application for certiorari and mandamus was out of time. That decision was followed by Hely J at first instance in Applicant S70 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs. 63 Those decisions establish that if an applicant can demonstrate error on the part of the RRT and an entitlement to an order prohibiting the Minister from acting on that decision it may be necessary to do justice to make an order quashing the decision and ordering the RRT to reconsider the applicant's application for review. Those decisions appear to contradict Mansfield J's reasons. 64 Again, there is a respectable argument for concluding that if prohibition should be granted the time limits, if they applied at all, should give way for orders in the nature of certiorari and mandamus: see also Applicant S70 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 182 at [15]. 65 The applicant, however, did not challenge Mansfield J's decision on either of those grounds. 66 It follows that the applicant needs an extension of time within which to seek leave to appeal, and an order giving leave to appeal from an order dismissing the applicant's application for an extension of time within which to institute the April 2003 proceedings. Even if the two arguments to which I have referred were advanced, the applicant would still need leave because, as I have already said, Mansfield J's order was interlocutory. The applicant also needs an extension of time within which to seek leave because his application for leave to appeal was not brought within the time prescribed by O 52 r 10. 67 This application is quite clearly governed by the Federal Court Rules. 68 Rules of Court which prescribe time limits should ordinarily be obeyed: Ratnam v Cumarasamy [1964] 3 All ER 933 at 935. 69 However, the Federal Court Rules provide for the Court to enlarge the time within which a party can do an act or take a step in a proceeding: O 3 r 3. That is so even if the application for an extension of time is not made until after the time has expired: O 3 r 3(2)(b). The purpose of such a rule is to do justice between the parties: Gallo v Dawson (1990) 64 ALJR 458. In that case, McHugh J said at 459, in considering a Rule of Court of the High Court which allowed for an extension of time within which to appeal: 'That rule provides that the Court or a Justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262.' 70 Further, his Honour said: 'In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524.' 71 Whether an extension of time should be granted in this case must depend upon whether this is an appropriate case for leave to appeal. If it is, then the other matters to which McHugh J referred must be considered. If it is not, then the other matters to which McHugh J referred need not be considered because the justice of the case would not warrant the grant of an extension of time. It follows, therefore, that it would be appropriate to first consider whether this is a matter for which leave to appeal should be granted. 72 A court will grant leave to appeal from an order of a judge of this Court where the decision from which leave is sought is attended by sufficient doubt to warrant it being reconsidered by the Full Court and where substantial injustice would result if leave were refused supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 73 In a case such as this, where the matter is of such importance to the applicant because it concerns his right to remain in Australia, if the matter was attended by sufficient doubt to warrant it being reconsidered by the Full Court, then leave would ordinarily be granted. Whilst the applicant attended on the hearing of this application, he did not address any arguments relevant to the issues raised on this application. However, he did say that he wanted this matter reconsidered because if he were returned to Nepal he would be killed. 74 The applicant would only be entitled to leave to appeal if he could establish, on this application, that Mansfield J's order for refusing leave is likely to be reversed on the hearing of the appeal by the Full Court of this Court. That order will only be reversed if the reasons for the order do not support the order. As I have said in par [22], his Honour gave three reasons for refusing the application for an extension of time. If the first ground for refusal of the extension of time within which to institute the proceedings cannot be shown to be wrong, it would follow that the appeal could never succeed. That follows because his Honour found that the applicant had not disclosed an arguable case. 75 So, also, if the third reason could not be disturbed and the principle of res judicata applied, or there was an estoppel either by issue or under the Anshun principle, leave would have to be refused because the appeal could never succeed. 76 The respondent argued that regard must be had to other events which occurred after the RRT's decision and before the institution of the April 2003 proceedings. It is necessary, therefore, to put the April 2003 proceedings in context. 77 The applicant arrived in Australia on 16 November 1995 and, on 15 December 1995, applied for a protection visa. On 8 July 1997 a delegate of the Minister refused that application. 78 On 6 August 1997 the applicant applied to the RRT for a review of the decision of the delegate of the Minister. On 29 September 1999 the RRT published its reasons for its decision affirming the decision of the delegate not to grant a protection visa. 79 On 3 November 1999 the applicant filed an application in the Federal Court of Australia seeking a review of that decision. 80 The grounds of the application to the Federal Court were: '1. The decision involved error of law, being an error involving the interpretation of the Law or the application of the Law to the facts. Particulars 1. The Tribunal's decision involved an error of law in sec.476(1)(e) being an error involving the interpretation [sic] the applicable law to the facts as found by the tribunal, who made the decision, whether or not the error appears on the record of decision. 2. The decision evolved [sic] incorrect application of the applicable law to the fact as found by the Tribunal. Particulars a) The finding of the facts made by the tribunal concerning my situation in nepal [sic] and to conclude me being a Nepalese citizen while having the documentary proof of being Tibetan, the tribunal made an error. By arriving to the different conclusion within the meaning of Sec. 476(1)(e) that, the decision involved an incorrect interpretation of the applicable law to the facts found by the Tribunal.' 81 The matter came on before Hely J. The applicant did not appear on the first return of the application but was represented by a solicitor. The matter was adjourned because the solicitor's instructions were withdrawn. The applicant was advised in writing of the adjourned hearing. However, when the matter came on again before Hely J on 5 April 2000 his Honour was not sure that the applicant was aware of the hearing date. 82 On that day Hely J dismissed the application and ordered the applicant to pay the respondent's costs. Hely J described the applicant's case as a 'hopeless' one. 83 In relation to the grounds of the application before him, Hely J said: 'The application for an order of review asserts an error of law in terms of s 476(1)(e) of the Migration Act 1958 (Cth). The applicant claims that RRT concluded that he was a Nepalese citizen while having documentary proof of his being Tibetan. The application does not make sense nor does it disclose any matter which is capable of enlivening s 476(1)(e). In any event, the applicant stated that he was a Nepalese citizen in his application for a protection visa. He travelled to Australia on a Nepalese passport. The applicant's application for a Protection Visa states (at Relevant Documents 6) "My father was a citizen of Nepal and so am I". At Relevant Document 60, the applicant's representative described the applicant as a "citizen of Nepal". For these reasons, as I have indicated, a consideration of the papers indicates that the application is hopeless and in those circumstances I accede to the respondent's application to dismiss the proceedings under Federal Court Rule 32(2)(c) and order that the applicant pay the respondent's costs of the proceedings. I know it may be an exercise in futility, but I should direct that the respondent give notice to the applicant at his address for service of the decision which has been reached this morning and the reasons for the making of that decision.' 84 Order 32 r 2 provides: ' 2 (1) If, when a proceeding is called on for trial, any party is absent, the Court may - (a) order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court may direct; (b) adjourn the trial; (c) if the party absent is an applicant or cross-claimant dismiss the action or the cross-claim; or (d) proceed with the trial generally or so far as concerns any claim for relief in the proceeding. (2) Where the Court proceeds with a trial in the absence of a party, and at or at the conclusion of the trial an order is made, the Court may set aside or vary the order, and may give directions for the further conduct of the proceeding. (3) Subrule (2) does not enable the Court to vary the verdict, finding or assessment of a jury at a trial except with the consent of each interested party present at the trial.' 85 Hely J adopted the procedure in O 32 r 2(1)(c), not the procedure in O 32 r 2(1)(d). 86 Clearly, the rule envisages either that the matter not proceed (O 32 r 2(1)(a) and (b)) or proceed (O 32 r 2(1)(c) and (d)). If it proceeds and the absent party is the applicant or a cross-claimant, the Court may dismiss the action or the cross-claim. Order 32 r 2(1)(c) only applies when it is the applicant or cross-claimant who is absent. It has no application where the absent party is a respondent or cross-respondent. 87 That paragraph does not require the judge to 'embark upon any investigation of the merits of the absent applicant's claim': Pham v University of Queensland [2002] FCAFC 40 at [26]. Indeed, the subrule contemplates that the action or the cross-claim will be dismissed because that party is absent and for that reason alone. 88 Order 32 r 2(1)(d) applies whether the absent party is an applicant or respondent, cross-claimant or cross-respondent. 89 If the Court elects to proceed under O 32 r 2(1)(d) the Court must investigate the merits of the matter. That follows because the Court is proceeding with the trial generally. 90 Although Hely J offered his opinion of the strength of the applicant's claim, it must be assumed, because he said he was proceeding under O 32 r 2(1)(c), that he did not consider the merits of the applicant's case as he would if the matter had proceeded under O 32 r 2(1)(d). I think it may be assumed that he passed the opinion to which I have referred to explain why he was exercising his discretion to dismiss the applicant's claim because of the applicant's non-attendance. 91 The issue before Hely J was whether the RRT was correct to conclude that the applicant was a national of Nepal or whether, in fact, he was, as he asserted, in the papers before that Judge a national of Tibet. 92 The current application, of course, is an application for leave to appeal from the decision of Mansfield J who dismissed the applicant's claim for the issue of the constitutional writs in respect of the same decision of the RRT which Hely J was considering and in which he dismissed the application for judicial review. 93 Not only was the same decision the subject matter of the application to Mansfield J, but so also was the same ground raised. 94 In a statutory declaration filed in support of his application before Mansfield J the applicant said: 'I am a Tibetan and I grew up in Nepal. I belong to Sherpa (Lama) clan who are Tibetan and living in Nepal due to the fear of persecution in the hand of Chinese authority who occupy Tibetan land now and Tibet is under china. My father, grandfather were refugees in Nepal due to the Chinese occupation of Tibet. I was the kid born in Exile. … When my application was heard at RRT, RRT did not believe that I was a Tibetan. They said I was a Nepalese Sherpa. This is a wrong finding. I have documents to prove that I am Tibetan. I currently have a Tibetan passport issued by the government in exile. Tibet's government is in Exile and Dalai Lama is the head of the exiled government. My evidence given at the tribunal under oath was not accepted. I was told that I am Nepalese which I am not.' 95 The issue before Mansfield J was the same issue considered by Hely J; whether the RRT was right to conclude that the applicant was Nepalese in the light of the applicant's claim that he was Tibetan. 96 In respect of the merits of the application, Mansfield J said at [5]: 'In the first place, it is necessary for the applicant to demonstrate that he has some arguable basis for asserting jurisdictional error on the part of the Tribunal if he were to succeed in being given an extension of time to bring the proceeding. No such arguable jurisdictional error has been put forward. When asked to identify the jurisdictional error asserted, his counsel referred only to a factual determination as to his nationality which the Tribunal made and with which he disagreed. A dispute of fact is not itself a matter which gives rise to jurisdictional error or could do so. The grounds upon which the prerogative orders were sought as expressed in the affidavit by which the application was brought are general in terms. Nothing has been said by his counsel to endeavour to support any of them. There is no material before me outside the reasons for decision of the Tribunal, which could support any of them. The reasons for the Tribunal's decision upon my reading, do not on their face indicate that any of these grounds are sustainable. As I have said, counsel for the applicant has not sought to point to any part of the Tribunal's reasons to sustain any of them.' 97 The respondent has argued that the applicant should not be granted leave to appeal for the following alternative reasons. First, the cause of action before Mansfield J is the same cause of action which was considered by Hely J in all respects and res judicata applies: Blair v Curran (1939) 62 CLR 464. Therefore, these proceedings cannot continue. Alternatively, the issue which was sought to be agitated before Mansfield J was the same issue which was agitated before Hely J and which was decided adversely to the applicant. In those circumstances, the issue has been finally determined between the parties and an issue estoppel arises: Somanader v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 178 ALR 677. Thirdly, and alternatively, if this is a new issue it should have been raised in the proceedings before Hely J and the doctrine of Anshun estoppel applies: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602. Fourthly, the applicant is attempting to reagitate matters dismissed in the first proceedings and this amounts to an abuse of process. 98 I think the respondent's argument that the matter before Mansfield J was both in substance and in form the same matter considered by Hely J is correct. However, in making that submission, the respondent did not address the status of Hely J's decision. As I have already said, Hely J dismissed the applicant's claim under O 32 r 2(1)(c), without addressing the merits of the applicant's claim, because the applicant did not attend. 99 In Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (1996, 3rd ed) at 93, the authors state the principle: 'A judgment by default is a final judgment, and will give rise to a res judicata estoppel, although it may be vacated on the application of the defendant or the plaintiff. The extent of the estoppel created by such a judgment must be carefully limited. The defendant is estopped from setting up any defence which was "necessarily and with complete precision" decided by the default judgment.' 100 In Rogers v Legal Services Commission (1995) 64 SASR 572, the Full Court of the Supreme Court of South Australia held that summary dismissal of a claim for damages did not bar the appellant from bringing further proceedings for breach of statutory duty, negligence and misfeasance in a public office. 101 The appellant had been charged with contempt of court in Family Court proceedings. He was unable to obtain legal representation and legal aid was refused on the grounds that there were no reasonable prospects of successfully defending the charge. The appellant was convicted of the offence but subsequently successfully appealed the conviction and then brought the damages proceedings. Those proceedings were summarily dismissed for disclosing no cause of action known to law. The appellant then instituted the second proceedings. The respondent successfully raised a defence of res judicata in relation to the negligence cause of action and obtained summary judgment in respect of the additional causes of action. In the Full Court of the Supreme Court, after considering cases where claims had been struck out for want of prosecution, non-suits and discontinuances, I said at 594-595: 'So also does an action that is dismissed stand in a different position to an action in which judgment has been given after a hearing on the merits. As to whether or not the dismissal of an action gives rise to a matter capable of being pleaded as res judicata, that may depend upon whether the dismissal of the action is seen to have necessarily involved a determination of any particular issue or question of fact or law. If it does not, then the dismissal decides nothing, except the dismissal of the action itself.' (Cox and Prior JJ agreed.) 102 In Clout v Klein [2001] QSC 401, Holmes J held at [26] that '…it is clear that there is no universal rule that a default judgment will found a successful plea of res judicata'. In Clout v Klein, the applicants (first and second defendants) were seeking orders striking out parts of a further amended claim and statement of claim, on the basis that the second plaintiff was estopped from advancing against them any claim by reason of the dismissal of an earlier action brought by it against them. 103 The first claim sought declarations as to the existence of an agreement between the parties, pursuant to which the applicants were said to be obliged to repay certain monies. The claim was, in substance, founded in unjust enrichment. Prior to the hearing of the first claim, the National Australia Bank appointed receivers and managers to the plaintiffs pursuant to a charge. When the first claim was called on for hearing, a solicitor for the receivers and managers indicated that they had not adopted the action. An adjournment was refused and de Jersey CJ ordered that 'judgment be entered in favour of the first and second defendants …'. 104 The second claim was commenced shortly after de Jersey CJ made the above order. In the second claim, Fibre-Tek, the company of which the applicants were former directors, claimed against the applicants for breach of directors' duties. The applicants pleaded that the judgment of de Jersey CJ in the first claim caused the cause of action to be litigated in the second claim to merge with the former judgment. 105 Holmes J found that the cause of action to be litigated in the second claim had not merged with the judgment in the first claim because they were not, in substance, identical causes. However, his Honour also addressed the application of res judicata to judgments which may be thought to have been made in the absence of consideration of the merits of a case. Holmes J said at [26]: 'The rationale for the application of res judicata to default judgments may be that they are to be regarded as a form of consent judgment; although equally it may be said that they indicate nothing "but the fact that a defendant for unascertained reasons, negligence, ignorance or indifference has suffered judgment to go against him". But it is clear that there is no universal rule that a default judgment will found a successful plea of res judicata.' 106 His Honour continued at [28]: 'In the light of such authorities, it may be questioned whether a judgment obtained on a procedural default, as this one was, is capable of giving rise to an estoppel based on res judicata. However that may be, it is clear that great care must be taken in defining what may be said to be the res judicata of the first action …' 107 There are cases where the courts have treated a dismissal for non-attendance as having the potential to sustain a later plea of res judicata. The New South Wales Court of Appeal in Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 held that the dismissal of a counterclaim as a result of a party not appearing at trial, prima facie acts as a bar to re-litigating the same claim in subsequent proceedings. It was argued in that case that the order, which was made without the counterclaim having been considered on its merits, was not final and could not found a plea of res judicata. 108 Kirby P rejected the argument and said at 518: '[Hexham] has not sought to sever and have set aside the order made in the County Court dismissing the counter-claim. It has simply chosen to ignore the judgment and order… It may be understood that if a judgment, on its face, is contingent or provisional, it will not have that element of finality which it is the purpose of the law of res judicata to defend. But where the judgment is on its face final, the mere fact that a party has a privilege to apply to have that judgment set aside cannot convert it to a contingent or provisional judgment forever flawed and incapable of giving rise to res judicata…The mere fact that a judgment entered for default of appearance of a party may be set aside if that party moves the court giving judgment to do so, is not a reason, in the meantime, for regarding the judgment so entered as anything but final for the purpose of the law of res judicata.' 109 Clarke JA (with whom Samuels JA agreed) also rejected the argument and said at 526-527: '… [I]f a plaintiff withdraws from the trial and an order is made in its absence dismissing its claim then that order will, unless set aside or successfully appealed from, ground a later plea of res judicata in the event that a later attempt is made to litigate the same case. The position is no different than that which arises under a default judgment.' 110 That case would suggest that the appropriate course of action where an order is made under O 32 r 2(1)(c) is to make an application to have the order set aside: O 35 r 7(2)(a). 111 In England, a default judgment 'is capable of giving rise to an estoppel per rem judicatam': Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 at 1010. In that case, Viscount Radcliffe said at 1010: 'The question is not whether there can be such an estoppel, but rather what the judgment prayed in aid should be treated as concluding and for what conclusion it is to stand. For, while from one point of view a default judgment can be looked upon as only another form of a judgment by consent … and, as such, capable of giving rise to all the consequences of a judgment obtained in a contested action or with the consent or acquiescence of the parties, from another a judgment by default speaks for nothing but the fact that a defendant for unascertained reasons, negligence, ignorance or indifference, has suffered judgment to go against him in the particular suit in question. There is obvious and, indeed, grave danger in permitting such a judgment to preclude the parties from ever reopening before the court on another occasion, perhaps of very different significance, whatever issues can be discerned as having been involved in the judgment so obtained by default.' (Footnotes omitted.) At 1011 His Lordship said: ' Their Lordships are satisfied that, where a judgment by default comes in question, it would be wrong to apply the full rigour of any principle as widely formulated as that of Henderson v. Henderson. It may well be doubted whether the Vice-Chancellor had in mind at all the peculiar circumstances of a default judgment and whether such a judgment would not naturally fall into his reservation of "special cases." In any event it is clear from what has been said in other authorities more immediately directed to the point that a much more restricted operation must be given to any estoppel arising from a default judgment.' (Footnotes omitted.) 112 In this case, the dismissal of the application before Hely J did not establish any fact or point of law. All it established was that the applicant, for unascertained reasons, did not attend before the Court. It might be that he did not receive notice of the hearing. He was not present when the matter was set down. 113 This is not the same as a defendant who allows judgment to be entered against him because a defence was not entered. That might indicate a consent or acquiescence. This was simply an order entered for an undisclosed failure to attend a hearing of which the applicant might or might not have had notice. In my opinion, it would not be appropriate to decide this application adversely to the applicant on this ground. The applicant was unrepresented and the claim of res judicata was not brought to his attention until submissions were made. That is not said critically of the respondent. However, neither party adduced any evidence to explain the failure of the applicant to attend before Hely J. It may be that there was relevant evidence which would have assisted in determining whether Hely J's order should be thought to support a claim of res judicata. 114 Because the matter has not been fully argued, this application is not the appropriate vehicle to decide the status of Hely J's order. This application should not be dismissed on that ground. 115 No separate application has been made to set aside Hely J's order. 116 I do not think any issue estoppel could arise by reason of Hely J's order. The procedure adopted by his Honour meant that no findings of fact were made or issues decided. 117 It follows that no question of issue estoppel properly arises because: 'Where a proceeding has been dismissed, no finding of fact will establish an estoppel unless it was necessary to the dismissal.' (Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (1996, 3rd ed), 58.) See also Kuligowski v Metrobus [2004] HCA 34 at [25]. 118 In the case of a dismissal under O 32 r 2(1)(c), the only issue decided is that the applicant was absent and therefore the proceeding should be dismissed. 119 Because I think the issues were the same, I do not think the Anshun principle arises. I need not consider the question of abuse of process. 120 In the end result, this application for an extension of time for leave to appeal must be decided by having regard to whether the applicant has any arguable case that the RRT's decision is wrong. 121 The applicant arrived in Australia on 16 November 1995. On 15 December 1995 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth). On 8 July 1997 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa. On 6 August 1997 the applicant sought a review of that decision before the RRT. The RRT's decision was given on 29 September 1999. 122 The applicant's case before the RRT was that his grandfather had migrated from Tibet to Nepal. His father was a citizen of Nepal and so was he. His case was that the Nepalese people hate the Sherpas, which are the people who have migrated from Tibet. The RRT accepted that the applicant was a citizen of Nepal and considered his claim of discrimination in Nepal because of his Tibetan Sherpa ethnicity. It considered his claims of persecution but found that the incidents of which he complained were relatively minor and did not amount to persecution. 123 It concluded that there was no real chance that the applicant would face persecution for reasons of his ethnicity or race now or in the reasonably foreseeable future if he were to return to Nepal. 124 The applicant's claim before the RRT was that he was a citizen of Nepal. He now seeks to argue that the RRT was wrong to so conclude because he is, in fact, Tibetan. 125 In my opinion, the applicant's claim that the RRT erred is simply not sustainable or arguable. The RRT made a finding consistent with his claim but then found that he was not subject to persecution for reasons of his ethnicity or race. 126 I agree with Hely J that the applicant's claim for judicial review is hopeless. 127 I also agree with Mansfield J that the applicant has not advanced an arguable case of jurisdictional error. The applicant complains in his third statutory declaration that his then solicitor did not address information which the applicant submitted to the RRT in detail, which the applicant says amounts to procedural and jurisdictional error. But there is nothing in that. Otherwise, his complaints were merit based. 128 The applicant has not, on this application or before the primary judge, brought forward any evidence to support the claim that the RRT had committed jurisdictional error. If he cannot establish an arguable case of jurisdictional error then, of course, his application for a review of the RRT's decision is bound to fail and leave to appeal must be refused. 129 For all those reasons, it is clear that the applicant could not obtain leave to appeal. Because he has no prospects of obtaining leave to appeal, it would not be appropriate to grant an extension of time within which to seek leave to appeal. 130 I dismiss the application for an extension of time within which the applicant has to seek leave to appeal. I dismiss the application for leave to appeal. The applicant must pay the respondent's costs. I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Applicant A184 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

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