Applicant S233 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 415

FEDERAL COURT OF AUSTRALIA

Applicant S233 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 415

APPLICANT S233 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 2483 OF 2005

BENNETT J
10 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2483 OF 2005

BETWEEN:	APPLICANT S233 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT
DATE OF ORDER:	10 APRIL 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   Notice of motion filed 13 December 2005 be dismissed.

2.   The Applicant pay the respondent’s costs of the notice of motion.

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 2483 OF 2005

BETWEEN:	APPLICANT S233 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BENNETT
DATE:	10 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 25 November 2005, a Judge of this Court refused an application for an order nisi brought by the applicant.  His Honour found there was no basis upon which he could reasonably conclude that there was at least an arguable case for the grant of constitutional relief. 

2. On 13 December 2005, the applicant filed a notice of motion seeking the following orders:

   ‘1. an order that this appeal be allowed;

   2. an order that the decision of the Refugee Review Tribunal be set aside;

   3. such other orders as this honourable Court considers appropriate;’

   and seeking leave for the extension of time in which to appeal.   I note that nothing in that notice of motion directly addressed the decision of his Honour.   The affidavit filed in support of the motion however does make reference to the decision of the Federal Court.  The affidavit says that the applicant seeks an order to extend time so that he can lodge a notice of appeal and serve the respondent.  It also asserts that he received the decision after the time for filing an application for leave to appeal had expired.

3. There is no draft notice of appeal filed by the applicant giving insight into any error which he wishes to maintain.  Neither the notice of motion nor the affidavit provide a proper basis upon which this application for extension of time to appeal can proceed nor any basis upon which I can ascertain any merits in his proposed appeal.

4. When the matter was called on this morning for hearing there was no appearance by the applicant.  The respondent has filed an affidavit stating that Departmental records indicate that the applicant left Australia on 1 March 2006 aboard a specified airline and that at the time of his departure, he was a holder of a bridging visa class WE subclass 050 which did not authorise his re-entry into Australia. 

5. It would seem to me that the applicant has abandoned this notice of motion and any appeal.  Mr Markus, who appears for the Minister, submits that any appeal would be futile and accordingly, no order should be made granting the extension of time in which to appeal from the decision of the primary judge.  In the circumstances I agree with those submissions and the application is dismissed.  The notice of motion is 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 Bennett.

Associate:

Dated:            10 April 2006

The

Solicitor for the Respondent:	A. Markus, Australian Government Solicitor
Date of Hearing:	10 April 2006
Date of Judgment:	10 April 2006