Applicant S193/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 241

FEDERAL COURT OF AUSTRALIA

Applicant S193/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 241

MIGRATION – application for leave to appeal judgment and orders made by single judge of the Court – no merit demonstrated by application – relief refused

Migration Act 1958 (Cth)

APPLICANT S193/2005 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2305 OF 2005

CONTI J
16 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2305 OF 2005

BETWEEN:	APPLICANT S193 OF 2003 APPLICANT
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	16 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal from the Judgment and orders of Bennett J made on 4 November 2005 be refused.

2.The applicant to pay the Minister’s costs of the present application of $800.00.

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 2305 OF 2005

BETWEEN:	APPLICANT S193 OF 2003 APPLICANT
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	16 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from the judgment and orders of Bennett J given and made on 4 November 2005, whereby her Honour refused an application for an order nisi in respect of a decision of the Refugee Review Tribunal handed down on 20 September 2000.  By that decision, the Tribunal affirmed the decision of a delegate of the Minister which had refused the applicant a protection visa.

2. By the applicant’s proposed notice of appeal, the applicant seeks a declaration that s 424A(3) of the Migration Act 1958 (Cth) is ultra vires the Constitution, and relief is also sought upon the basis of alleged failure of the Tribunal to consider relevant country information. Though the applicant has filed written submissions in support of his application for leave to appeal, the same do not address the orders sought in his draft notice of appeal. Instead by those submissions, the applicant asserts that the decision of the Tribunal involved a ‘jurisdictional error of law involving an incorrect interpretation of the applicable law to the fact (sic) of the case’.  No legal basis or reasoning or at least adequate and plausible reasoning was purportedly provided for that assertion.

3. The applicant arrived in Australia on 7 February 1998.  His application for a protection (class AZ) visa was refused by a delegate of the Minister on 23 March 1998.  The applicant’s subsequent application for review was addressed by the Tribunal with considerable thought and care, extending over some 17 pages.  A subsequent application for prerogative relief filed with the High Court on 19 May 2003 led to the subsequent remission to the Federal Court of the haring of the order nisi thereby sought, which, as I have above stated, was unsuccessfully pursued before Bennett J. 

4. In his oral address to the Court, the applicant was unable to distil any viable basis for reversing in whole or in part the reasons for judgment of Bennett J handed down on 4 November 2005, such as to justify the grant of leave to appeal.  In particular no viable submission was made to me demonstrative of any error of law in her Honour’s approach or reasoning, either in the applicant’s written submissions filed on 3 March 2006 or otherwise in oral address.  The written submissions constituted in substance or reality a rehearsal of complaints as to the Tribunal’s findings upon the factual merits or otherwise of the Tribunal’s findings.

5. The application for leave must therefore be dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:            16 March 2006

The Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 March 2006
Date of Judgment:	16 March 2006