Applicant S341 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 170

FEDERAL COURT OF AUSTRALIA

Applicant S341 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 170

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Applicants S311 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 45

APPLICANT S341 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 85 OF 2004

HELY J
27 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 85 OF 2004

BETWEEN:	APPLICANT S341 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	27 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The applications be 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	N 85 OF 2004

BETWEEN:	APPLICANT S341 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	27 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of Emmett J given on 4 December 2003, in which his Honour ordered that the application, the subject of matter number N 998 of 2003, be dismissed with costs.  The applicant also requires an extension of time within which to apply for leave to appeal from that application, but Mr Markus does not take any point insofar as the time factor is concerned.  I therefore proceed upon the basis that the application is both for leave to appeal and for an extension of time within which to seek leave.  I also proceed upon the basis that any delay in making the application is not a reason for refusing it.

2. The subject of the proceedings before Emmett J was an application for an order nisi in relation to a decision of the Refugee Review Tribunal (‘the RRT’).  It is clear that an order refusing an application for an order nisi is an interlocutory order, see Applicants S311 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 45 at [40]. Leave to appeal is therefore required: Federal Court of Australia Act 1976 (Cth) s 24(1A).

3. Emmett J dismissed the application because, firstly, nothing on the face of the RRT’s reasons for decision showed an arguable case that the RRT had acted in excess of its jurisdiction or had otherwise committed a reviewable error.  Secondly, no material had been adduced by the applicant in support of the grounds claimed in the draft order nisi.  Thirdly, the applicant failed to comply with an order which his Honour made on 27 October 2003 that the applicant file specified documents by a nominated date.  This order was designed to expose whether the applicant had an arguable case or not.  A document not in conformity with the order was belatedly filed, but his Honour held that it did not expose an arguable case. 

4. The affidavit which the applicant has lodged in support of the present application seeks to re-agitate the merits of the RRT’s decision, but does not disclose any error on the part of Emmett J in dismissing the application for the reasons which his Honour gave.

5. His Honour’s decision was given in the exercise of a discretion and nothing has been shown which indicates any miscarriage of the exercise of the discretion.  The conclusion to which his Honour came is a conclusion with which I completely concur.  Leave to appeal should be refused because the applicant has not established an arguable case of error on the part of Emmett J.  There is nothing which requires consideration or reconsideration by a Full Court.  As I have noted above, the application filed on 28 January 2004 should be treated as an application for leave to appeal as well as an application for an extension of time within which to seek leave.  Both applications are 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 Hely.

Associate:

Dated:             2 March 2004

The applicant appeared in person
Counsel for the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 February 2004
Date of Judgment:	27 February 2004