Applicant M59 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1533

FEDERAL COURT OF AUSTRALIA

Applicant M59 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1533

MIGRATION – Application for extension of time in which to file and serve an application for leave to appeal – proposed appeal doomed to fail – application refused

APPLICANT M59 OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V1375 OF 2004

MARSHALL J
25 NOVEMBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1375 OF 2004

BETWEEN:	APPLICANT M59 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	25 NOVEMBER 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for an extension of time within which to bring an application for leave to appeal be dismissed.

2. The applicant pay the respondent’s costs of, and incidental to, the application for an extension of time, fixed at $900.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1375 OF 2004

BETWEEN:	APPLICANT M59 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	25 NOVEMBER 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 22 October 2004, Merkel J refused the applicant an order nisi for prerogative relief in respect of a decision of the Refugee Review Tribunal (“the RRT”) made on 30 March 1999. In refusing to grant an order nisi Merkel J noted that the applicant had previously issued another application seeking judicial review of the RRT decision before this Court. His Honour also noted that the previous application had been dismissed by a judge of the Court. From a perusal of the file which was before Merkel J, it appears that the other application resulted in an application for leave to appeal which was dismissed.

2. Merkel J noted that the application before him raised no further or additional material over and above what was before the Court in the earlier proceeding.  His Honour made orders refusing the application for an order nisi, with costs fixed at $2,000.

3. On 9 November 2004, the applicant filed an application for leave to appeal from the judgment of Merkel J, a draft notice of appeal and an affidavit. Under O52 r10(2)(b), the application for leave to appeal should have been filed within 7 days of his Honour’s interlocutory judgment.

4. Consequently, also on 9 November 2004, the applicant filed an application for an extension of time, within which to file and serve a notice of appeal. Strictly the application should have been for an extension of time to apply for leave to appeal, but since the applicant prepared his own materials, without legal assistance, the Court will treat the application for an extension of time as regularly made.

5. In his affidavit the applicant said that he disagreed “with the decision of his Honour Justice Merkel”. He did not say why. His draft notice of appeal states that, “there was an error in law in the Judge’s decision concerning jurisdictional error”. But no elaboration is provided.

6. The Court is unable to identify any error of law or other error in the judgment of Merkel J. The application for leave to appeal is doomed to fail. No purpose would be served by extending the time within which it may be made.

7. In fact, the applicant did not appear this morning to advance his application.  He left a message with the Registry this morning to the effect that he was sick and unable to attend Court today.  No application was made on his behalf for an adjournment.  Further there is nothing that could be put to advance his case.

8. The applicant was unsuccessful before the RRT in 1999 and has now had two shots at judicial review of that decision.  Those advising the respondent should be vigilant to ensure that the processes of the High Court and of this Court are not further abused by interminable applications by the applicant.

9. The Court will order as follows:

   1.The application for an extension of time within which to file and serve an application for leave to appeal be dismissed.

   2.The applicant pay the respondent’s costs of and incidental to the application for an extension of time, fixed at $900.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             25 November 2004

There was no appearance by the Applicant.
Counsel for the Respondent:	Ms S. Law
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 November 2004
Date of Judgment:	25 November 2004