Applicant A305 of 2002 v MIMIA [2005] HCATrans 198 (8 April 2005)

--

Applicant A305 of 2002 v MIMIA [2005] HCATrans 198 (8 April 2005)

Last Updated: 20 April 2005

[2005] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S156 of 2004

B e t w e e n -

APPLICANT A305 OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 APRIL 2005, AT 9.23 AM

Copyright in the High Court of Australia

GUMMOW J: The applicant is a citizen of India.

The Refugee Review Tribunal affirmed the decision of the delegate of the Minister to refuse the applicant's protection visa application. The Tribunal did not believe the applicant's claim that if returned to India he would be subject to persecution by reason of his Christian faith and his caste. Nor did the Tribunal believe his claim that he was threatened by a gang over his desire to press for the prosecution of the person responsible for his mother's death in a motor accident.

A judge of the Federal Court (Tamberlin J) refused an application for leave to appeal from the judgment of another judge of that Court (Bennett J) refusing an application for an order nisi. That application had been remitted to the Federal Court by a Justice of this Court pursuant to s 44 of the Judiciary Act 1903 (Cth).

In the application for special leave made to this Court, the applicant contends that Tamberlin J erred in treating the matter before him as an application for leave to appeal rather than an appeal because the orders made by Bennett J were final, and not interlocutory, orders. This argument must fail. Order 51A, r 5 of the Federal Court Rules assumes that an order nisi is separate and distinct to an order absolute. It does, however, provide specifically that, where the judge hearing a remitted application intends to make the order absolute, he or she can proceed directly to do so without making the order nisi. In this case, Bennett J correctly expressed her decision as one refusing to grant the order nisi. This is evident from the terms of the order made by her Honour and from the second paragraph of her judgment where she states that the question in the application was “whether the applicant had an arguable case”.

In Re Media, Entertainment & Arts Alliance and Theatre Managers' Association; Ex parte Hoyts Corporation Pty Ltd [1994] HCA 66; (1994) 68 ALJR 179 at 180; [1994] HCA 66; 119 ALR 206 at 207, this Court unanimously held that the refusal of an application for an order nisi was an interlocutory decision. As a result, s 24(1AA) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) prevents an appeal being brought from a judgment that is an interlocutory judgment unless the Court or a judge gives leave to appeal. Thus, Tamberlin J was correct to deal with the matter before him as an application for leave to appeal.

There is a question whether, given the terms of s 33 of the Federal Court Act respecting appeals to the High Court, an appeal from the Federal Court constituted by a single judge would be competent. We emphasise that point, but we deal with the application on the merits.

There are insufficient prospects of success to warrant a grant of special leave against the decision of the Federal Court. Special leave is refused with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing with costs this application for special leave.

I publish the disposition signed by Justice Kirby and myself.

AT 9.26 AM THE MATTER WAS CONCLUDED