Applicant S1174 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 136
•7 FEBRUARY 2005
FEDERAL COURT OF AUSTRALIA
Applicant S1174 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 136
APPLICANT S1174 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1773 OF 2004HELY J
7 FEBRUARY 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1773 OF 2004
BETWEEN:
APPLICANT S1174 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
HELY J
DATE OF ORDER:
7 FEBRUARY 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal and extension of time in which to file and serve a notice of appeal be dismissed with costs.
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
NSD 1773 OF 2004
BETWEEN:
APPLICANT S1174 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
HELY J
DATE:
7 FEBRUARY 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On the application for an adjournment
I invited the applicant to put any submissions he wanted to put to me in response to the respondent’s submissions. In response to that invitation the applicant indicated that he sought an adjournment of these proceedings for the purpose of getting legal advice. The decision of the Refugee Review Tribunal (‘the RRT’) was given on 29 April 1998 and the matter has been litigated before O’Connor J in this Court and in the High Court. Emmett J’s decision was given on 20 February 2004 and thereafter the applicant instituted proceedings in the Federal Magistrates Court. The application which is currently before me was filed on 30 November 2004. In my view, the applicant has had ample time within which to get legal advice if in truth he is interested in seeking it and the application for an adjournment is refused.
On the application for an extension of time within which to seek leave to appeal
The applicant arrived in Australia on 18 November 1996. His application for a protection visa was unsuccessful. He applied to the RRT for a review of that decision which was handed down on 29 April 1998. The RRT affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.
In substance, the RRT’s decision was based upon a failure to accept the applicant as a truthful person. The RRT found that the applicant had fabricated his claims. On 17 November 1998 an application for review of that decision was dismissed by O’Connor J and thereafter a draft order nisi was filed in the High Court of Australia seeking the issue of constitutional writs on the ground of a denial of procedural fairness. On about 29 May 2003 the matter was remitted to the Federal Court and on 20 February 2004 the application for an order nisi was dismissed by Emmett J because the evidence filed in support did not demonstrate an arguable case for the grant of relief. The applicant was represented by his solicitor Mr Joel and by counsel on that occasion.
His Honour’s order refusing to grant an order nisi is interlocutory in character. Leave to appeal is required before an appeal could be instituted from that decision. The time within which leave to appeal ought to have been sought expired on 27 February 2004.
On 18 March 2004 the applicant lodged an application for review of the RRT’s decision in the Federal Magistrates Court which was discontinued pursuant to the orders of Federal Magistrate Driver on 29 November 2004 granting leave to the applicant to file a notice of discontinuance.
On 30 November 2004 an application was filed in this Court for an extension of time in which to apply for leave to appeal from the decision of Emmett J and for leave to appeal from that decision. The only explanation which the applicant proffers for the delay in seeking to appeal is that he is unrepresented and ignorant of applicable time limits. His affidavit in support of the application for an extension of time asserts an expectation on his part that the Federal Court will find in his favour.
A draft notice of appeal was lodged in support of the application. It follows a familiar form and insofar as it is intelligible it does not disclose any viable ground of appeal in the context of the applicant's claim.
When the matter came on for hearing before me the applicant handed up a document styled Applicant’s Argument for Competency, which is some six pages in length. Rather than attempting to summarise the document here I will have it placed with the papers so that it forms part of the Court record. The document, in my view, does not disclose that the applicant has an arguable case for an appeal nor does it advance any explanation for the lengthy delay in applying for leave to appeal.
In my view, the application for an extension of time within which to apply for leave to appeal should be refused, firstly, because of a failure satisfactorily to explain the delay in bringing forward the application, secondly, and more importantly, because the applicant has neither established any error on the part of Emmett J in refusing to grant the order nisi nor that he has any arguable case on appeal. The application filed on 30 November 2004 is therefore dismissed.
The respondent seeks an order that the applicant should pay the respondent’s costs of the application. The applicant opposes the making of such an order on the grounds that he has no income and no money with which to meet a costs orders. Whilst there is no evidence of those matters before me I am prepared to assume that that is the case, but the fact that an unsuccessful applicant is impecunious is not ordinarily regarded as a sufficient reason for departing from the usual practice as to costs. In my view, the usual practice should be followed in the present case. Accordingly, I order that the application be dismissed with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate:
Dated: 2 March 2005
The applicant appeared in person Solicitor for the Respondent: Sparke Helmore Date of Hearing: 7 February 2005 Date of Judgment: 7 February 2005
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