Applicant S1226 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1744

FEDERAL COURT OF AUSTRALIA

Applicant S1226 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1744

APPLICANT S1226 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1661 OF 2004

TAMBERLIN J
SYDNEY
16 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1661 OF 2004

BETWEEN:	APPLICANT S1226 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	16 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal is dismissed.
2. The application for an extension of time within which to file and serve a notice of appeal is dismissed.
3. The applicant pay the respondent’s costs assessed at $1200.

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 1661 OF 2004

BETWEEN:	APPLICANT S1226 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	16 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal and an application for an extension of time within which to file a notice of appeal from a judgment of a single judge of this Court given on 4 May 2004.  The respondent objects to the purported appeal on the basis that it is incompetent, and that there is no legal basis for making such an appeal.

2. The respondent has provided a chronology that helpfully sets out background details to the matter.  The applicant is a citizen of Bangladesh who arrived in Australia on 5 March 1999 and lodged an application for a protection visa. A delegate of the Minister refused this application on 22 March 1999, and on 15 April 1999, the applicant applied for a review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 6 September 2000, the Tribunal conducted a hearing, at which the applicant gave oral evidence.  The Tribunal handed down its decision on 5 October 2000, affirming the decision made by the Minister’s delegate.

3. On 21 October 2000, the applicant joined in a representative action that went before the High Court, and on 25 November 2002, there was an order that the applicant be granted leave, as a member of that representative action, to file a draft order nisi in the High Court.  Upon the filing of that draft order nisi, the persons named were removed from the representative action, and the draft order was remitted to the Federal Court. 

4. Following these orders the representative action stood dismissed from 30 May 2003.  On 23 May 2003, the High Court ordered that the date of dismissal of the proceedings be extended to 19 June 2003.  On 29 May 2003, the applicant filed a draft order in the High Court and on 16 June 2003 it was ordered that the date of the dismissal extended to 20 June 2003. 

5. Accordingly, this was the date by which the order nisi had to be filed.  On 20 February 2004, a judge of this Court refused the applicant's order nisi, and he applied for leave to appeal from that judgment.  The matter came before another judge of this Court and that judge refused the application for leave to appeal.  It is this decision that is the subject of the applications before me.

6. The applicant then initiated proceedings in the Federal Magistrates Court on 20 May 2004.  There were some directions hearings, and the applicant filed an Amended Application, following which the respondent filed an outline of submissions, on 11 November 2004.

7. On 12 November 2004, the applicant filed in this Court a Notice of Motion for leave to appeal from the decision of the single judge of this Court, together with an affidavit in support.

8. On 15 November 2004, the applicant filed a Notice of Discontinuance in the Federal Magistrate's Court.

9. The objection has been taken to the present application that there is no basis for an appeal from the decision of the single judge in this Court, and I agree with this submission.  Accordingly, in my view any such appeal would be an incompetent appeal. 

10. In any event, the applicant has put nothing before me in this case to show that there is any reasonable ground for appeal.  On the hearing before me today the applicant stated that he has not had sufficient time to obtain legal advice in relation to this matter.  However, I am not persuaded that this is the case.

11. Therefore, I order that the application for leave to appeal is refused, and the application for an extension of time within which to file and serve a notice of appeal is refused.  I order the applicant to pay the respondent's costs of this application. If the applicant cannot pay the costs the respondent will not be able to recover them, but I think as a matter of law that the respondent is entitled to costs.  The amount that has been suggested is $1200, and accordingly I assess the costs at $1200.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            16 December 2004

The Applicant appeared in person with the assistance of an interpreter.
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	16 December 2004
Date of Judgment:	16 December 2004