Applicant M67/2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 349

FEDERAL COURT OF AUSTRALIA

Applicant M67/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 349

MIGRATION – application for leave to appeal dismissed, no point of principle

NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297, applied

Somander v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677, followed

APPLICANT M67/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V273 OF 2004

MELBOURNE
26 MARCH 2004
MARSHALL J

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V273 OF 2004

BETWEEN:	APPLICANT M67/2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	26 MARCH 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for an extension of time to file and serve a notice of appeal be dismissed.

2.        The application for leave to appeal be dismissed.

3.          The applicant pay the respondent’s costs of the appeal.

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	V273 OF 2004

BETWEEN:	APPLICANT M67/2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	26 MARCH 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant has applied for an extension of time in which to appeal from a judgment of the Federal Magistrates Court. The judgment in the Court below dismissed the applicant’s application for an order nisi in respect of a decision of the Refugee Review Tribunal. Although the judgment purported to dismiss “the application”, the only application before the Court was one for the issue of an order nisi. Consequently the judgment is an interlocutory one: see NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297.

2. The applicant filed his draft notice of appeal seven days outside the time limit provided for in O52 r10(2)(b) of the Rules of Court. In an affidavit, in support of extension of time and leave to appeal applications, the applicant stated that he disagreed with the judgment below and wanted to “argue (his) case” before “a Full Court”.

3. In this case a grant of leave, either to extend time or to appeal would be futile because an appeal would have no prospect of success.

4. The learned Chief Federal Magistrate correctly identified two insuperable hurdles in the path of the applicant’s success, that is, the application of res judicata and issue estoppel.

5. Her Honour correctly observed that a previous proceeding seeking to raise the same issues was the subject of a consent order dismissing the matter in this Court. Those same grounds cannot be relied upon to support a new application:  see Somander v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677, per Merkel J. Further the state of fact and law alleged in the matter before her Honour is a matter necessarily decided by the previous consent order: see Blair vCurran (1939) 62 CLR 464.

6. The applications before the Court are dismissed, with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             26 March 2004

The Applicant failed to appear
Counsel for the Respondent:	Ms J. Greaves
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	26 March 2004
Date of Judgment:	26 March 2004