Daniel v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a judgment of Goldberg J delivered on 29 January 2004: Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21. By that judgment, his Honour, in effect, refused to grant an order nisi seeking what are generally described as "constitutional writs". His Honour's judgment was interlocutory. For that reason, the applicant requires leave to appeal. 2 The matter came before Goldberg J on remitter from the High Court. It began in that Court on 14 February 2001 when the applicant applied for an order nisi for the issue of writs against the then Minister for Immigration and Multicultural Affairs ("the Minister"), and the Refugee Review Tribunal ("the Tribunal"). The subject matter of the writs was a decision of the Tribunal made on 16 July 1999 affirming a decision of a delegate of the Minister refusing the applicant a protection visa. 3 The applicant sought the issue of a writ of prohibition directed to the Minister, a declaration and a writ of mandamus also directed to the Minister, a writ of certiorari directed to the Tribunal, a writ of mandamus directed to the Tribunal, and an injunction requiring the principal member of the Tribunal to appoint another member to rehear and determine the applicant's application. 4 Before his Honour, the applicant relied upon one ground only in support of the relief claimed. He contended that the Tribunal had not addressed a claim that he had a fear of persecution as a result of information provided to the Sri Lankan authorities by the congregants of his church. The Minister disputed that contention and submitted that the Tribunal had addressed that issue in its reasons for decision. Goldberg J accepted the Minister's argument on that point. 5 However, before arriving at that conclusion, Goldberg J held that the applicant had not provided any adequate explanation for the delay that had occurred between 16 July 1999, when the Tribunal published its reasons for decision, and 14 February 2001, when the applicant commenced proceedings in the High Court. In the interim, the applicant had commenced proceedings in this Court for judicial review of the Tribunal's decision. That application was filed on 12 August 1999. However, on 2 May 2000, North J ordered by consent that the proceeding be dismissed. The applicant's explanation for not proceeding with the Federal Court application was: "I had to withdraw my application due to the financial constraints I encountered." 6 On 14 July 2000, the applicant caused a letter to be written to the Minister, on his behalf, requesting the Minister to exercise his power under s 417 of the Migration Act 1958 (Cth) to make a more favourable decision than had the Tribunal. On 11 January 2001, the Minister wrote to the applicant informing him that he had decided not to consider exercising his power under that section. 7 Goldberg J followed a long line of authority in this Court in concluding that the applicant's consent to the dismissal of his application by North J should properly be characterised as an indication that the applicant accepted that the Tribunal's decision was correct, and that he did not intend to challenge that decision further in the Court. His Honour referred to Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576; Re Batuwantudawa [2003] FCA 684; Opanayaka Mudiyanselage v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 823; Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1266; and Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331 at [16]‑[20]. 8 Goldberg J concluded that the explanation provided by the applicant for the delay in bringing proceedings in the High Court was inadequate, and did not warrant an extension of time. He relied upon the well-known observations of McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-6 regarding the need for exceptional circumstances to be demonstrated before time would be extended in circumstances where there had been a lengthy delay between the decision and the commencement of proceedings in the High Court. 9 Goldberg J went on to consider whether there was any basis for the issue of a writ of prohibition against the Minister, or for the grant of injunctive or declaratory relief. He concluded that there was no basis for any of these forms of relief. He regarded the dismissal of the applicant's claim by North J, albeit by consent, as having given rise to a res judicata, or failing that, an Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 10 The principles that govern leave to appeal from an interlocutory judgment are well established. They are set out in the judgment of the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In substance, the applicant must show that the decision at first instance was attended with sufficient doubt to warrant it being reconsidered. He must also show that substantial injustice would result if leave were refused, supposing the decision at first instance was incorrect. These tests are qualified in circumstances where substantive rights, rather than points of practice, are at issue. 11 I accept that this is a case in which leave would more readily be granted because substantive rights are in issue. However, I can see no basis upon which the decision of Goldberg J can be impugned. His Honour's analysis of each of the issues raised was squarely based upon well-established authority, and his reasoning was, in all relevant respects, plainly correct. The applicant, regrettably, was unrepresented before me, and perhaps not surprisingly, was unable to point to any arguable error in his Honour's judgment. I am satisfied that there was no such error. 12 In all the circumstances, the application for leave to appeal must be dismissed. The applicant must pay the respondent's costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.