Applicant M52 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

THE COURT: 1 This is an application for extension of time to file and serve a notice of appeal. It is also an application for leave to appeal, and a purported appeal against a decision of Heerey J dismissing the applicant's application for orders nisi for prohibition and certiorari against the respondent Minister and against two members of the Refugee Review Tribunal ("the Tribunal"). 2 The applicant is a citizen of India who, in 1994, applied with his wife for protection visas on the ground that they fear persecution in India because of the applicant's perceived support for Sikh extremists in the Punjab region. The applicant's application for a protection visa was refused by a delegate of the Minister on 21 November 1995. The applicant sought a review of that decision by the Refugees Review Tribunal ('Tribunal'), but that was dismissed. The Tribunal found that there was only a 'remote or insignificant chance that the applicant would suffer persecution on return to India due to his imputed political opinion or religion': RRT Reference V95/03843 at 37. 3 The applicant then sought judicial review of the Tribunal's decision in this Court. By consent, orders were made remitting the application for a protection visa to the Tribunal for reconsideration. A differently constituted Tribunal affirmed the original decision, and the applicant again sought judicial review in this Court. Again, by consent, orders were made remitting the matter to the Tribunal. For a third time the Tribunal affirmed the decision not to grant a visa. It concluded on that occasion that 'the applicant would not face a real chance of persecution in Punjab today'. 4 The applicant again sought judicial review of the Tribunal's decision, but in December 2000, after a contested hearing in which the applicant was represented by a barrister, a judge of this court dismissed the application. The applicant did not appeal from this judgment, but instead applied twice to the Minister seeking the exercise of his discretion under s 417 of the Migration Act 1958 (Cth) to give a more favourable decision. Both of these requests were refused. After the second request to the Minister was refused, the applicant applied to the High Court of Australia in May 2002 for orders nisi for prohibition and certiorari against the Minister's decision to refuse his second request. 5 A justice of the High Court granted leave to amend the proceedings so that, in effect, they became directed against the decision of the Tribunal of May 2000 which, however, was the decision of the Tribunal that had already been challenged unsuccessfully in this Court. The amended application claimed a range of errors on the part of the Tribunal, but without sufficient particulars of what they actually were. The High Court then remitted the case to this Court where it was heard by Heerey J, together with a similar application by the applicant's wife. 6 Heerey J dismissed the applications on the ground that the applicant and his wife did not have any satisfactory explanation for the long delay in seeking the orders nisi from the High Court. 7 Heerey J also held that even if the time for seeking the orders were extended, the principles of law discussed in Port of Melbourne Authority v Anshun (1981) 147 CLR 589 would have prevented the applicant from challenging the findings of the Tribunal since that challenge could have been made in the applicant's earlier case before the Federal Court. 8 Without going into detail, the principle, to which Heerey J refers, says, in essence, that you cannot go on bringing cases before the court about the same matter. Put shortly, you can only have one case for one legal claim, and you cannot raise in a later matter, a ground that you could have raised in the original matter, because otherwise there would be no end to litigation in the courts. It was for these reasons, therefore, that Heerey J dismissed the applications for orders nisi under various provisions of the Federal Court of Australia Act 1976 (Cth) and the Rules appropriate in such circumstances. 9 Because the decision made by Heerey J was interlocutory in nature, leave to appeal from it was needed (NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297). That leave had to be applied for promptly, in fact within seven days (s 24(1A) Federal Court of Australia Act 1976 (Cth), O 52 r 10(1)(b) Federal Court Rules). This was not done. Instead, the applicant filed a notice of appeal at the end of January 2004. 10 The notice claimed jurisdictional error with the following particulars: I disagree with the decision of His Honour in that he did not take or give proper consideration of the explanations that I gave with regard to the delays as to why we were late in lodging our applications. The Tribunal did not understand my case and it used documents I was never given a copy of so that I could comment. His Honour asked me what documents I was referring to and because I was nervous and had not done this before, I was not able to tell him about the documents. The judge should have given me the opportunity to go through my notes and try and find those documents.