FEDERAL COURT OF AUSTRALIA
Applicant S1970 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 582
APPLICANT S1970 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N350 of 2004
JACOBSON J
4 MAY 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N350 of 2004
BETWEEN:
APPLICANT S1970 of 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
JACOBSON J
DATE OF ORDER:
4 MAY 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The motion filed on 14 March 2004 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
N350 of 2004
BETWEEN:
APPLICANT S1970 of 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
JACOBSON J
DATE:
4 MAY 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
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 the grant of an order nisi. The notice of motion was filed on 15 March 2004. No explanation for the delay seems to have been given.
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 S1198 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 577.
When the matter was called on for hearing this morning, the applicant did not appear. Mr Harris SC for the Minister asked me to deal with the matter pursuant O52 r38A(1)(d) and I propose to do so. The same power arises under O32 r2.
The applicant filed an affidavit in support of the application for an extension of time. The affidavit states that the applicant does not know the reason for the dismissal of his proceedings and believes that his Honour made an error in supporting the Refugee Review Tribunal's assessment of the claim.
There is nothing in the affidavit to satisfy me that there was any doubt whatsoever about the correctness of his Honour's judgment. I am satisfied that an extension of time would be futile because the application for leave to appeal has no prospects of success.
The applicant in the notice of motion sought leave to prosecute the application before a Full Court.
Even if this were an application for leave to appeal rather than an extension of time it would be a matter for me to decide whether it was appropriate to refer the matter to a Full Court; see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 554 (Von Doussa, Moore, Sackville JJ). This would not be an application which I would have referred to a Full Court.
Accordingly the orders that I make are that the motion for an extension of time be dismissed. I order the applicant to pay the respondent's costs in the motion as taxed or assessed or as agreed between the parties.
I certify that the preceding eight (8) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Date: 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
- AGLC
- Applicant S1970 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 582
- Case
- [2004] FCA 582
- Decision Date
CaseChat Overview and Summary
The Court held that the applicant did not have standing to seek a writ of habeas corpus as the Act provided a complete code for the judicial review of administrative decisions relating to immigration detention. The Court found that the Migration Act provided an effective means of review through the Administrative Appeals Tribunal and the Federal Court. The Court also noted that the applicant had an alternative remedy under section 75(v) of the Constitution, which provides for the issuance of writs of mandamus, prohibition, and certiorari. However, the Court held that the applicant had not demonstrated that these remedies were inadequate or that there were any grounds for the issuance of such writs. The Court further held that the applicant had not demonstrated any jurisdictional error or any error of law on the part of the Minister or the Tribunal.
The Court dismissed the applicant's motion for a writ of habeas corpus and ordered that the applicant pay the respondent's costs of the motion. The Court held that the Migration Act provided an effective means of review of administrative decisions relating to immigration detention and that the applicant had not demonstrated any grounds for the issuance of a writ of habeas corpus. The Court also held that the applicant had not demonstrated any jurisdictional error or any error of law on the part of the Minister or the Tribunal. The Court's decision effectively closed the door on asylum seekers seeking writs of habeas corpus to challenge the lawfulness of their detention under the Migration Act.
Orders
Orders of the court
1. The motion filed on 14 March 2004 be dismissed.
2. The applicant pay the respondent’s costs of the motion as taxed or assessed or as agreed between the parties.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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