Applicant M171/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 220

Applicant M171/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 220

By majority, the Court held that time should be extended because the applicant had attempted to appeal within time but had used the wrong procedure for an interlocutory order. Leave to appeal was refused because the proposed appeal had no prospects of success: the draft order nisi and supporting material contained unparticularised allegations and no factual foundation for any arguable jurisdictional error, and the primary judge was entitled to alter the procedural course, order that O 51A r 5(1) not apply, refuse the order nisi, and decline to adjourn or grant further time.

Jurisdiction
Australia
Judgment Date
24 August 2004
Procedural Posture
Migration Judicial Review; Application for Extension of Time and Leave to Appeal / Full Court Appeal From Interlocutory Refusal of an Application for an Order Nisi
Outcome
Extension of time to seek leave to appeal granted; application for leave to appeal dismissed; applicant ordered to pay the respondent's costs.
Legal Topics
['protection Visa Refusal' 'refugee Review Tribunal' 'order Nisi' 'interlocutory Appeal' 'extension of Time' 'leave to Appeal' 'procedural Fairness' 'adjournment' 'judicial Review']
['migration Law' 'administrative Law' 'practice and Procedure'] ['protection Visa Refusal' 'refugee Review Tribunal' 'order Nisi' 'interlocutory Appeal' 'extension of Time' 'leave to Appeal' 'procedural Fairness' 'adjournment' 'judicial Review']

Case Brief

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Procedural Posture

Migration Judicial Review; Application for Extension of Time and Leave to Appeal / Full Court Appeal From Interlocutory Refusal of an Application for an Order Nisi

Legal Issues

  1. 1 ['Whether the primary judge was entitled to order under O 51A r 5(2) that O 51A r 5(1) not apply and to deal with the matter as an application for an order nisi only.' 'Whether the primary judge was entitled to refuse the application for an order nisi on the basis that no arguable case was disclosed.' 'Whether the primary judge was obliged to adjourn or grant further time while the applicant sought pro bono assistance.' 'Whether leave to appeal from the interlocutory orders should be granted.' 'Whether an extension of time to seek leave to appeal should be granted.']

Ratio Decidendi

By majority, the Court held that time should be extended because the applicant had attempted to appeal within time but had used the wrong procedure for an interlocutory order. Leave to appeal was refused because the proposed appeal had no prospects of success: the draft order nisi and supporting material contained unparticularised allegations and no factual foundation for any arguable jurisdictional error, and the primary judge was entitled to alter the procedural course, order that O 51A r 5(1) not apply, refuse the order nisi, and decline to adjourn or grant further time.

Court Disposition

Extension of time to seek leave to appeal granted; application for leave to appeal dismissed; applicant ordered to pay the respondent's costs.

Orders

  • ['The applicant be granted an extension of time to seek leave to appeal.' 'The application for leave to appeal be dismissed.' "The applicant pay the respondent's costs of the application."]