Applicant S210/2003 v Minister for Immigration and Multicultural Affairs

[2006] FCA 988

FEDERAL COURT OF AUSTRALIA

Applicant S210/2003 v Minister for Immigration & Multicultural Affairs
[2006] FCA 988

APPLICANT S210/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR
NSD 993 OF 2006

RARES J
11 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 993 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

APPLICANT S210/2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

RARES J

DATE OF ORDER:

11 JULY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed with costs.

2.        Costs be fixed in the sum of $1,200.

3.The applicant not file any further proceedings in this Court seeking to challenge the decision of the Refugee Review Tribunal made on 26 March 2001 and handed down on 18 April 2001 or the decision of the delegate of the first respondent dated 29 May 1997 refusing to grant a protection visa without the leave of a Judge of this Court.

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 993 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

APPLICANT S210/2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	RARES J
DATE:	11 JULY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an application for leave to appeal from the decision of Driver FM (S210 of 2003 v Minister of Immigration [2006] FCA 669) given on 5 May 2006. Proceedings were commenced in the Federal Magistrates Court on 10 April 2006 seeking to challenge the decision of the Refugee Review Tribunal which was made on 26 March 2001 and handed down on 18 April 2001, affirming a decision of the delegate not to grant a protection visa.

2. The applicant had sought judicial review by filing a draft order nisi and affidavit on 22 May 2003 in the High Court of Australia.  That matter was remitted to this Court and on 9 November 2005 Emmett J held that the material presently before the Court did not disclose an arguable case; S210 of 2003 v Refugee Review Tribunal [2005] FCA 1579 at [5]. Accordingly, his Honour refused the application for orders nisi.

3. The applicant then sought an extension of time in which to seek leave to appeal from Emmett J’s decision and leave to appeal from it.  On 14 February 2006, Graham J granted the application for an extension of time but refused leave to appeal and ordered the applicant to pay the Minister's and the Commonwealth's costs (S210 of 2003 v Refugee Tribunal [2006] FCA 210). Graham J said that nothing had been put to the Court by the applicant which suggested that Emmett J had erred in his consideration of the application for an order nisi, and accordingly refused the application for leave to appeal (see [17]).

4. After that, the applicant brought the challenge which is the subject of the current application before Driver FM. His Honour held that by force of s 477 of the Migration Act  1958 (Cth) as affected by the transitional provisions in cl 42 of schedule 1 of the Migration Litigation Reform Act2005 (Cth), the last day on which the applicant could have sought to bring proceedings in the Federal Magistrates Court was 23 February 2006. Certainly by 10 April 2006 when the proceedings the subject of the present application were filed in that Court, the applicant was well out of time to challenge the decision of the Tribunal, which had been handed down in 2001 and challenged in the High Court proceedings by him in 2003.

5. The application before Driver FM was rightly dismissed by his Honour as being incompetent.  I am of the opinion that there is no prospect of success in any appeal and it would be futile to grant leave.  I do not consider there would be any injustice to the applicant in refusing leave.  In my opinion the application should be dismissed with costs.

6. I fix the sum of $1,200 as the amount of costs to which the Minister is entitled under my costs order.  I order that the applicant not file any further proceedings in this Court seeking to challenge the decision of the Refugee Review Tribunal made on 26 March 2001 and handed down on 18 April 2001 or the decision of the delegate of the first respondent dated 29 May 1997 refusing to grant a protection visa without the leave of a Judge of this Court.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:            2 August 2006

The Applicant:	In person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 July 2006
Date of Judgment:	11 July 2006