MZWHN v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This matter was fixed for hearing today and the applicant appeared to represent herself when the matter was called on for hearing. 2 This matter has a long history in this Court. On 22 May 2003, the applicant filed an application in the High Court seeking judicial review of the decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent refusing to grant the applicant a protection visa. This application was remitted to the Federal Court and then transferred to the Federal Magistrates Court. On 18 March 2004, his Honour Federal Magistrate Phipps ordered that this application be dismissed. On 23 March 2004 the applicant applied for leave to appeal from that decision. Gray J of the Federal Court refused the application for leave to appeal by order dated 22 April 2004. 3 On 18 May 2004, the applicant filed a second application for review. On 20 October 2004, Registrar Connard of this Court, ordered the applicant to file and serve an amended application by 17 November 2004. It appears from the court file that the applicant did not comply with those orders. The second application was heard by McInnis FM. The learned Federal Magistrate dismissed the second application on the ground that it was an abuse of process, and noted an alternative basis, namely that he was satisfied that there was no jurisdictional error in the decision from which the application for reveiw had been instituted. 4 The applicant then filed a further application in this Court on 7 March 2005, seeking an extension of time with in which to file and serve out of time, a notice of appeal from the decision of McInnis FM. Included in the application was a reference to the need to 'seek leave'. It is possible that the application for extension of time is predicated on an assumption that the time for applying for leave to appeal was governed by O 52 r 10 (2)(b) of the Federal Court Rules providing a time limit of seven days within which to seek leave to appeal an interlocutory judgment of the Federal Court. This assumption has been made before: BZAS of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 449 at [7] (Spender J) ('BZAS'). See also SZCET v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1516 at [5] (Stone J) ('SZCET'). It might be thought that the recurrence of such an assumption highlights a lacuna in O 52. Be that as it may, the present position has been considered, comprehensively, by Lindgren J in SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1542 at [9] ('SZDGN'). 5 The application for an extension of time has been treated as including an application for leave to appeal and the respondent's submissions were all directed to that issue. To the extent that the application for extension of time needs to be dealt with, following SZDGN at [9], SZCET at [5], SZDQF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1728 at [2] (Jacobson J) and Applicants 42/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 207 at [2] (Jacobson J) ('Applicants 42/2003'), the applicant has an implied time limit of 21 days within which to seek leave to appeal and accordingly does not require an extension of time. 6 The matter was adjourned by Finkelstein J on 30 March 2005 and again by Ryan J on 12 April 2005, because the applicant sent a letter to the Court claiming to be unwell. Another letter arrived on 21 April 2005 in which the applicant claimed to be too unwell to attend the hearing as she was still recovering from an operation. A letter has been sent to the applicant from my Chambers advising her that the Court would require a medical certificate from her doctor if the matter were to be adjourned again on medical grounds. 7 The applicant appeared in person today and stated that she had nothing she wished to say in relation to her application, other than that she had had an operation on 6 April 2005 and was not well afterwards. This was clearly directed to her application to extend time. She did not advance any submissions generally in relation to the merits of her application. 8 To the extent that the Federal Magistrate's decision is not a final decision because he dismissed the application on the basis that the application is an abuse of process, the decision was interlocutory and leave would be required in respect of any appeal and would only be granted in accordance with the principles set out in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ('Décor v Dart'). 9 The view that the decision was interlocutory, rather than final, is supported by the fact that the learned Magistrate was disposing of an application under O 13 r 3(1) and r (10)(c) of the Federal Magistrates Court Rules. He accepted the submission that in the circumstances, which were that the applicant issued a second application for judicial review (having had a first application finally determined) without filing any substantive additional material, the application was an abuse of process, without more. Accordingly, it was not necessary to invoke the doctrines of res judicata and/or estoppel and/or Anshun estoppel, which could have resulted in the decision being characterised correctly as a final decision: cf SZDGN at [6] and the cases referred to there; Applicants 42/2003, SZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 283 at [21] - [23] (Madgwick J) and SZELL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 457 at [3] (Hely J) with MZWHW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 466 at [3] - [7] (Kenny J). 10 A reading of the whole of the Federal Magistrate's decision indicates that the fact that he identified an alternative basis for summary dismissal, namely that he was satisfied 'that in this application there is no jurisdictional error of a kind which would attract judicial review' is no more than a reference to powers to summarily dismiss under O 13 r 10(a) being an alternative to the power under O 13 r 10(c), upon which he primarily relied. The implicit finding that the application was unarguable or doomed to failure does not convert what is ostensibly an interlocutory decision to a final decision (a possibility raised in argument by the respondent). 11 In relation to the Décor v Dart principles, the decision of the McInnis FM is not attended by sufficient doubt to warrant it being reconsidered by the Full Court of this court. The applicant has not advanced any proposition or material to the contrary. In addition, given the history of the matter, no substantial injustice will result if leave is refused. It can also be noted that the leave sought is in relation to a matter of practice and procedure, rather than in relation to substantive issues. 12 Further, it would be appropriate to consider such matters when considering the merits of an application seeking to extend the time within which to apply for leave to institute the appeal were such an extension required. 13 In all the circumstances the appropriate order is to refuse the application for leave because to grant leave would be an exercise in futility. Treating the application for an extension of time as one which includes an application for the grant of leave, the orders I propose to make would be that the application be dismissed with the applicant to pay the respondent's costs fixed at $1,500.00. For the sake of completeness, perhaps it should be noted that if, contrary to my view, the Federal Magistrate's decision is final and the applicant requires neither leave to appeal nor an extension of time, there would nevertheless be ample discretion pursuant to powers, both express and implied, enabling the Court, on this return, to dismiss the application as unarguable or doomed to failure and/or an abuse of process.