Applicant S432 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1375

FEDERAL COURT OF AUSTRALIA

Applicant S432 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1375

APPLICANT S432 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1359 of 2004

WILCOX ACJ
13 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1359 of 2004

BETWEEN:	APPLICANT S432 of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX ACJ
DATE OF ORDER:	13 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The objection to competency be upheld and the purported appeal be dismissed. 

2.The applicant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

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 1359 of 2004

BETWEEN:	APPLICANT S432 of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX ACJ
DATE:	13 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX ACJ:

1. On 17 September 2004, the applicant filed a notice of appeal against a decision of Allsop J given on 1 September 2004. The order made by Allsop J was an order to dismiss the applicant's application for an order nisi. That was an interlocutory order, so leave to appeal was necessary under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). No leave was granted. The solicitor for the respondent filed a notice of objection to competency on the ground that leave to appeal has not been granted. This objection is well taken.

2. In refusing an order nisi, Allsop J was strongly influenced by the fact that this proceeding is an attempt to re-litigate a previous unsuccessful challenge to the relevant decision of the Refugee Review Tribunal.  He held, and I agree, that the Court should not countenance parties attempting to re-litigate matters already finally determined.

3. Accordingly, I uphold the objection to competency and order that the purported appeal be dismissed.  The applicant is to pay the respondent's costs. 

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Wilcox.

Associate:

Dated:             29 October 2004

The Applicant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Mr B Rayment, Sparke Helmore
Date of Hearing:	13 October 2004
Date of Judgment:	13 October 2004