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[2005] FCA 1540
Federal Court of Australia
2005-10-27
Emmett J, Nicholson JJ, Jacobson J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1. This is an application for leave to appeal from a decision of Emmett J given on 30 August 2005. On that date his Honour dismissed a notice of motion filed by the applicant on 21 June 2005. The notice of motion sought an order setting aside orders made by Emmett J on 1 June 2005 dismissing the proceedings and ordering the applicant to pay the respondent's costs. 2. The application for leave to appeal was filed on 30 September 2005. Leave to appeal is required because his Honour's judgment and orders of 30 August 2005 were interlocutory. 3. The notice of motion for leave to appeal was filed approximately three weeks after the date provided for in order 52, rule 10(2)(b) of the Federal Court Rules. Order 52, rule 10(2A) permits the court to grant an extension of time to file an application for leave to appeal. The authorities establish that the court has a discretion, and the likelihood of leave to appeal being granted is a relevant consideration. 4. I will proceed upon the basis that Mr Pitman is seeking an extension of time and the question which I therefore have to consider is whether the applicant has any likelihood of success in obtaining leave to appeal. Evidence of reasons for the delay are to be taken into account, see Deighton v Telstra Corporation (Unreported, Full Court of the Federal Court of Australia, 17 October 1997, Lee, Heerey and Nicholson JJ); see also Croker v Phillips Electronics Australia Limited [2000] FCA 1731. 5. An affidavit seeking to explain the delay was filed by the applicant. The reasons for the delay seem to be that the applicant has only recently discovered evidence to substantiate his claim that he was denied procedural fairness in the Administrative Appeals Tribunal ("AAT") by reason of the late service of documents.
Background 6. The applicant was born in New Zealand and first entered Australia in 1986. He has spent most of his life here. He was the holder of a Class 444 Special Category Visa. However, on 1 February 2005 a delegate of the Minister cancelled the visa pursuant to section 501 of the Migration Act 1958 (Cth). The reason for doing so was the applicant's substantial criminal record. The applicant sought review of the delegate's decision by the AAT. 7. On 15 April 2005 the AAT confirmed the delegate's decision, the applicant then commenced a proceeding in this court on 6 May 2005 seeking relief under section 39B of the Judiciary Act 1901 (Cth). In that proceeding the applicant claimed that the AAT failed to afford him procedural fairness contending that he was served with a bundle of paperwork less than two days before the hearing and that he was therefore unable to conduct his case properly, to seek proper legal advice or to call the appropriate witnesses. 8. The matter was before Emmett J for directions on 1 June 2005. The applicant did not appear and the Minister's solicitors tendered a facsimile communication from the applicant stating that he wished "to pull" his appeal and go back to New Zealand. In those circumstances his Honour at the request of the Minister dismissed the proceeding summarily pursuant to Order 35A, Rule 2(1)(b) of the Federal Court Rules. 9. Subsequently the applicant filed a notice of motion seeking to set aside his Honour's summary dismissal. It is to be noted that at [5] of his Honour's reasons for judgment of 30 August 2005 he observed that no evidence was filed in support of the application for review of the AAT. His Honour said "in particular, there was no evidence concerning the circumstances that were claimed to give rise to procedural unfairness". 10. At [12] of his judgment of 30 August 2005, Emmett J observed that there was nothing before him to indicate that the applicant asked the AAT for an adjournment to enable him to give further consideration to any documents or for any other reason. His Honour also observed that a reading of the reasons of the Tribunal suggested that there was no substance at all in the applicant's complaints about the AAT's decision. 11. His Honour continued at [12] as follows:- "The applicant was unable today to indicate any submission that he would wish to make to the Tribunal as to why the exercise of discretion by the Tribunal should be different. The Tribunal, in its reasons, concluded that the evidence as a whole demonstrated factors as against the applicant, some of which was serious. The evidence, however, demonstrated nothing in the applicant's favour." 12. His Honour then said at [13]:- "It is apparent that the applicant, as at 1 June 2005, had decided to abandon any challenge to the Tribunal's decision based on want of procedural fairness. Nothing has happened since then to indicate a justification for wishing to pursue a challenge to the Tribunal's decision, other than a change of heart. It is not suggested that other material has become available. Furthermore, there has been no evidence of the fresh legal advice to indicate that a challenge may be sustainable." 13. His Honour said at [14] that there has to be an end to litigation. He said that it was unfortunate that the applicant has no legal representation and also that he has spent most of his life in Australia but is now not to be permitted to continue to do so but he pointed out this is not a matter for the court. 14. In his affidavit in support of the application the applicant does not point to any error in Emmett Js judgment. He says at [8]:- "The grounds of appeal (if this matter were to be re-opened) simply are that the Administrative Appeals Tribunal failed to afford myself procedural fairness in making a determination to proceed with this matter despite myself having received the 'white book' … only a day prior to the hearing of the Administrative Appeals Tribunal." 15. The applicant also says in the affidavit that he now has evidence to support his claim that the white book was not served until the day before the hearing. 16. The applicant appeared in person this morning, he reiterated what he had apparently said to Emmett J, namely that he has been here for most of his life and that he has no real connection with New Zealand. He pointed to a number of difficulties which will be brought about by his removal to that country. He also emphasised the fact that he has no legal representation and that he would like a lawyer to look at his case.
Discussion 17. The principles upon which leave to appeal is granted are well known. It is incumbent upon an applicant to demonstrate that the decision from which leave is sought is attended by sufficient doubt to warrant it being reconsidered by a Full Court. There is also a question of whether, consistently with what was said by a Full Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, substantial injustice would result from the refusal of leave. 18. It seems to me that what has been put to me does not advance the position over and above what was said to Emmett J on 30 August 2005. The difficulty which the applicant faces is that his Honour found the applicant was unable to indicate anything that would demonstrate why the exercise of discretion by the AAT should be different. Similarly his Honour found that there was no evidence before him to indicate that a challenge to the AAT's decision may be sustainable. 19. I can find no error in the view reached by his Honour, nor has anything been put to me today to indicate that his Honour's view was wrong. There can be no injustice in refusing leave to appeal because his Honour's judgment was not attended by any doubt and his Honour found that there was no substance in the applicant's complaints about the AATs decision. 20. Since I am of the view that an application for leave to appeal would be unsuccessful there is no purpose served by extending time to make the application. 21. Accordingly the orders I will make are that the application for an extension of time to bring an application for leave to appeal is refused with costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.
Counsel for the Applicant: The Applicant appeared in Person
Solicitor for the Respondent: Blake Dawson Waldron
Pitman
Adminstrative Appeals Tribunal
(1991) 33 FCR 397