Applicant S2018 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 689

FEDERAL COURT OF AUSTRALIA

Applicant S2018 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 689

APPLICANT S2018 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 575 OF 2005

GYLES J
13 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 575 OF 2005

BETWEEN:	APPLICANT S2018 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	13 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application for an extension of time and for leave to appeal be dismissed. 

2.   The applicant pay the respondent's costs assessed at $500.

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 575 OF 2005

BETWEEN:	APPLICANT S2018 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	13 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for extension of time to file and serve a notice of appeal in relation to a judgment of Federal Magistrate Scarlett (Applicant S2018 of 2003 v Minister for Immigration [2005] FMCA 239). Also, because it is out of time, leave is required. The decision of the learned Federal Magistrate was delivered on 21 February 2005 and the application was not filed until 5 April 2005. The applicant is in detention and explains that there was a problem with communication because of that. I would accept that the mere delay would not be enough to shut him out from an appeal if there is a meritorious appeal to be brought. The problem in the case is that, in order to grant leave to appeal, there must be at least an arguable point to be put before the Court if the application is granted.

2. The grounds of appeal from the learned Federal Magistrate's decision were as follows:

   ‘In my opinion, the Honourable Magistrate Court did not look into the matter thoroughly about my case. 

   I have well founded fear of persecution if I go back to Punjab.’

   and the orders sought were as follows:

   ‘I believe that the decision made by the Honourable Magistrate is not justified and I need the Honourable Federal Court Justice to please consider.’

3. Today when I endeavoured to point out to the applicant the severe restrictions upon the role of this Court and indeed upon the role of the Federal Magistrates Court and drew his attention to the fact there needs to be an error in the judgment below, he was unable to say more than that he had a fear of persecution if he returns to the Punjab.

4. I have read the learned Federal Magistrate's decision and, although I have not read it with an eye to finding error and I have not attended to it in the way that one would if there were an appeal, I can see no obvious error or mistake in it.  It appears to follow a usual course.  I am mindful of the fact that there is also a long history associated with this matter.  It cannot be said that the applicant has not fully explored his rights both in joining the High Court proceeding and in this proceeding.  It is worth pointing out that the application for a protection visa was lodged on 13 May 1996. 

5. In my opinion, the appeal would be utterly without any chance of success.  That being the case, the application for an extension of time and for leave to appeal is refused.  The application is dismissed.  I order that the applicant pay the respondent's costs assessed at $500.

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

Associate:

Dated:             30 May 2005

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	R White of Sparke Helmore
Date of Hearing:	13 May 2005
Date of Judgment:	13 May 2005