Applicant S 1258 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 600

FEDERAL COURT OF AUSTRALIA

Applicant S 1258 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 600

APPLICANT S 1258 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N338 of 2004

JACOBSON J
4 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 338 of 2004

BETWEEN:	APPLICANT S 1258 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	4 MAY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The motion be dismissed.

2.   The applicant pay the respondent’s costs of the motion as taxed or assessed or as agreed between the parties.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 338 of 2004

BETWEEN:	APPLICANT S 1258 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	4 MAY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is one of eight motions under O 52 r 10(2)(b) for an extension of time to file an application for leave to appeal against the judgment of Emmett J given on 20 February 2004 refusing to grant an order nisi.  The motion was filed on 12 March 2004 but the reason for the delay seems to me to be satisfactorily explained in the applicant's affidavit. 

2. The relevant background to the proceedings and the reasons why his Honour refused to make an order nisi are referred to in my judgment in the matter of Applicant 1198 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 577. 

3. The applicant has filed an affidavit in support of his motion for an extension of time.  The affidavit states that his Honour's decision is not correct as it has not given the applicant any opportunity to put legal arguments before the court and did not consider all legal factors relevant to the application.

4. The affidavit also says that further information will be submitted in the future. 

5. The applicant appeared before me this morning.  He had the assistance of an interpreter.  He made only one point in his submissions.  He said that there is a problem in Nepal with the Maoist insurrection and that it will therefore be very unsafe for him to return. 

6. Whilst it is apparently true that the position in Nepal is a difficult one, that is not a reason for granting leave to appeal from the decision of Emmett J which turned upon the failure of the applicant and the numerous other applications which were before his Honour to disclose material which demonstrated an arguable case for relief under the principles stated by the High Court in Muin v The Refugee Review Tribunal (2002) 76 ALJR 966.

7. Nothing has been put to me either in the applicant's affidavit or orally to suggest that there is any doubt about the correctness of his Honour's judgment.  I am satisfied that an extension of time would be futile because on the material put before me there are no prospects of success in an application for leave to appeal. 

8. Accordingly, the orders I will make are that the motion for an extension of time be dismissed and that the applicant pay the respondent’s costs of the motion as taxed or assessed or as agreed between the parties.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson

Associate:

Dated:             4 May 2004

Applicant self represented
Counsel for the Respondent:	J D Harris SC
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	4 May 2004
Date of Judgment:	4 May 2004