Applicant M182 of 2003 v Minister for Immigration and Multicultural & Indigenous Affairs

THE COURT ORDERS THAT:

1. The appeal be dismissed as incompetent.
2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

the court 1 There is before the Court what purports to be an appeal from a judgment of Marshall J given on 8 December 2003. His Honour dismissed an application for constitutional writs directed to the respondent Minister, and to the Refugee Review Tribunal ("the Tribunal"), which had refused the "appellant" a protection visa. 2 Although his Honour expressed himself as having dismissed the application as disclosing no reasonable cause of action, what was actually before him was an application for an order nisi. For reasons that are not entirely clear, the respondent filed a notice of motion seeking summary dismissal, rather than simply opposing the grant of the order nisi. 3 Nonetheless, in accordance with the joint judgment of Whitlam and Kiefel JJ in NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297, no order nisi having been made, the only application formally before Marshall J remained one for such an order. An order refusing an application for an order nisi is an interlocutory order: Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 at 207. The order pronounced by Marshall J can only be regarded as such an order. An appeal against an interlocutory order requires leave. Leave has neither been sought, nor granted. The appeal is therefore incompetent, and must be dismissed, with costs. 4 If there were before the Court an application for leave to appeal, it would be refused. There is nothing to suggest that the Tribunal erred in any way in refusing to grant a protection visa, and there is also nothing to suggest that Marshall J's judgment is attended by any doubt. See generally Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Beaumont, Weinberg and Crennan.