Applicant S240 of 2003 v Minister for Immigration and Citizenship

[2007] FCA 216

FEDERAL COURT OF AUSTRALIA

Applicant S240 of 2003 v Minister for Immigration and Citizenship [2007] FCA 216

APPLICANT S240 OF 2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2277 OF 2007

MOORE J
27 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2277 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT S240 OF 2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	27 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first respondent's costs.

3.The name of the first respondent be amended to the 'Minister for Immigration and Citizenship'.

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 2277 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT S240 OF 2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	27 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against a judgment of a Federal Magistrate of 31 October 2006 dismissing as incompetent an application filed on 22 August 2006: see Applicant S240 of 2004 v Minister for Immigration & Anor [2006] FMCA 1705. That application was an application for judicial review of a decision of the Refugee Review Tribunal given on 27 October 1995 affirming a decision of a delegate of the first respondent not to grant the applicant protection visa. The Federal Magistrate concluded the application was incompetent as the application was out of time and the Court had no discretion to extend time in the circumstances, since the transitional provisions in the Migration Litigation Reform Act 2005 (Cth) were applicable and the application had been filed over 84 days after 1 December 2005 .  It appears to me that the decision of the Federal Magistrate was correct and that any appeal if ever given would be futile.  I dismiss the application for leave and order the applicant to pay the first respondent’s costs.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        2 March 2007

The Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 February 2007
Date of Judgment:	27 February 2007