Applicant S353/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 742

FEDERAL COURT OF AUSTRALIA

Applicant S353/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 742

APPLICANT S 353/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR
NSD 2602 of 2005

ALLSOP J
14 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2602 of 2005

BETWEEN:

APPLICANT S 353/2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

14 JUNE 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Time be extended for filing and serving an application for leave to appeal from the orders of the Court dismissing the order nisi up to and including the filing of the notice of motion on 22 December 2005.

2.The applicant file and serve as soon as practicable a draft notice of appeal setting out the grounds of the appeal and also file and serve as soon as practicable any application for the court to receive fresh evidence on the appeal should leave be granted.

3.The application for leave to appeal and the hearing of the appeal and any cognate application for fresh evidence on the appeal be referred to a Full Court, subject to the views of the Chief Justice and the further conduct and directions of the matter be referred to the appeals Judge and the appeals unit.

4.Direct the Registrar to approach Mr Knoll in the first instance (and then the NSW Bar Association) to obtain assistance either as amicus curiae or under O 80 of the Federal Court Rules, for the preparation of the documents required by order 2, and to act in the matter subject to the position that the appellant wishes to take concerning his legal representation.

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 2602 of 2005

BETWEEN:

APPLICANT S 353/2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	14 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant sought leave to appeal and to extend time in relation to that application. The original documents on the file contain scant details of the basis of the application. On 13 March 2006 I made orders that the matter stand over to later in April to allow the Registrar to approach the New South Wales Bar Association to obtain a barrister to assist with submissions. The applicant did not appear on that occasion. I was concerned, amongst other things, as to the application of section 424A of the Migration Act1958.  The Registrar did approach the Bar Association and Mr Knoll of counsel prepared a careful ten page submission for the benefit of the court.

2. He did so without the benefit of consultation with the applicant who was difficult to contact on the basis of the information available to Mr Knoll and to the Court.  The matter came before me on 11 May 2006 again.  By that stage I had considered the submissions of Mr Knoll.  Once again, the applicant did not appear.  I indicated on that day that I would be minded to extend time to file and serve an applicant for leave to appeal and to refer the application to a Full Court including any application for fresh evidence.  Such referral to a Full Court would be subject to the views of the Chief Justice as to the appropriateness of a Full Court to hear the matter.

3. One matter which needs to be understood, however, is that Mr Knoll was not able to serve an amended notice of appeal because of an absence of instructions from the applicant.  The applicant has appeared today, I assume that pursuant to my direction the Registrar and the respondent Minister took the steps to notify the applicant of the orders that I made on the last occasion.  I am prepared to extend time to file and serve an application for leave to appeal, in part, based on the concerns that I had in March and in part in relation to the matters raised by Mr Knoll in his submissions.

4. It will be necessary for a properly drafted amended notice of appeal to be brought forward together with any application for fresh evidence.  Those matters need to be attended to promptly and competently.  The orders that I propose to make are as follows:

   (1)extend time for filing and serving an application for leave to appeal from the orders of the court dismissing the order nisi up to and including the filing of the notice of motion on 22 December 2005.

   (2)order the applicant to file and serve as soon as practicable a draft notice of appeal setting out the grounds of the appeal and also to file and serve as soon as practicable any application for the court to receive fresh evidence.

5. I propose to make the orders confined by the time of "as soon as practicable" because I propose to extend the Order 80 order which I first made on 13 March 2006 to the preparation of those documents.  If Mr Knoll is prepared to continue to act either as counsel under Order 80 or as amicus curiae it would obviously be useful if he could assist.  However, the applicant has indicated today that he may have some assistance he would prefer to employ.  That is a matter for him.  If the applicant does not wish the services of counsel offered under Order 80, either as counsel on his behalf or as amicus curiae then Mr Knoll or any other barrister who is prepared to attend to the task can be relieved of that task.

6. Finally, I propose to refer the application for leave to appeal and the hearing of the appeal and any cognate application for fresh evidence on the appeal to a Full Court subject to the views of the Chief Justice, and I would also refer the further conduct of the directions of the matter to the Appeals Judge and the Appeals Unit.

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

Associate:

Dated:            22 June 2006

The applicant appeared in person.
Counsel for the Respondent:	Ms L Gazi
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 June 2006
Date of Judgment:	14 June 2006