Applicant S277 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 304
•18 MARCH 2004
FEDERAL COURT OF AUSTRALIA
Applicant S277 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 304
APPLICANT S277 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S 2560 OF 2003TAMBERLIN J
SYDNEY
18 MARCH 2004
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N2560 OF 2003
BETWEEN:
APPLICANT S277 OF 2003
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
TAMBERLIN J
DATE OF ORDER:
18 MARCH 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application for leave to appeal is dismissed with costs.
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
N2560 OF 2003
BETWEEN:
APPLICANT S277 OF 2003
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
TAMBERLIN J
DATE:
18 MARCH 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is a purported appeal from an interlocutory judgment of Emmett J given on 4 December 2003. An appeal to this Court from the judgment of Emmett J clearly requires leave and none has been obtained. In the circumstances, I consider that the purported notice of appeal should be treated as an application for leave to appeal.
BACKGROUND
The appellant is a citizen of Fiji who arrived in Australia on 2 November 1997. On 11 April 2000, he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).
The appellant claimed that he did not wish to return to Fiji because he had no one on whom to depend since his mother had died, and because the decline in the Fijian economy means that there are fewer opportunities for work and less pay is being offered. He also claimed that he would be seen as an outcast and face discrimination because he does not have any parents.
On 20 April 2000, a delegate of the respondent made a decision refusing to grant the appellant a protection visa. On 26 April 2000 the appellant sought review of this decision by the Refugee Review Tribunal (“the RRT”). The RRT upheld the delegate’s decision on 18 May 2000.
The matter has had a considerable history. When it came on for hearing before Emmett J on 4 December 2003, his Honour acceded to the respondent's application for the proceeding to be dismissed pursuant to O 10 r 7(2) of the Federal Court Rules for failing to comply with a direction of the Court.
REASONING ON APPEAL
The Notice of Appeal lodged by the appellant indicates the following as the grounds of the appeal, without further particulars: humanitarian ground, [in]stability, slim chance of a good future, no family ties to depend upon back home, and ongoing racial difference.
The appellant did not attend today’s hearing. He informed the Court that he did not intend to appear at the hearing, and it is evident from the facsimile the Court received yesterday at 4:16 p.m. that he is aware of the time and place of the hearing.
Nothing has been put before me to indicate in any way that the exercise of discretion by Emmett J was in error. Since directions before Emmett J were not complied with and no leave has been sought or obtained to appeal from Emmett J’s judgment, and since directions as to the filing of affidavits in relation to this matter have not been complied with and there appears to be no substance in any of the matters raised, I propose to dismiss the application.
As noted above, this is a case in which an appeal is incompetent unless leave is obtained, and the Notice of Appeal is to be treated as an application for leave to appeal. I am not persuaded on the material before me that there is any basis for leave.
Accordingly, I dismiss the application for leave to appeal with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate:
Dated: 23 March 2004
The Appellant did not appear. Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 March 2004 Date of Judgment: 18 March 2004
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