Applicant S505/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1731

FEDERAL COURT OF AUSTRALIA

Applicant S505/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1731

APPLICANT S505/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1726 of 2004

JACOBSON J
22 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1726 of  2004

BETWEEN:	APPLICANT S505/2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	22 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is refused.

2.The applicant to pay the costs of the application, fixed in the amount of $950.00.

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 1726 of 2004

BETWEEN:	APPLICANT S505/2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	22 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to make an application for leave to appeal against the orders of Branson J, dated 4 November 2004.  On that date her Honour ordered that the application for an order nisi be refused.  Her Honour's judgment was interlocutory and accordingly the application for leave to appeal was filed nearly two weeks out of time, as provided for in Order 52 rule 10(2)(b) of the Federal Court Rules.  The applicant must show special reasons for an extension of time.  It is unnecessary to deal with the well-known authorities on the question of special reasons.

2. Her Honour's judgment was delivered extempore and was a very short judgment.  I will set out the whole of the judgment of her Honour which consists of four paragraphs:

   “On 16 February 2004, Heydon J of the High Court of Australia ordered that further proceedings in this application be remitted to the Federal Court.  The application then before the High Court was an application for the issue of an order nisi claiming constitutional writs.  Before the High Court the applicant required an extension of time.  In the circumstances of this case, it’s not necessary for me to determine whether or not the applicant requires an extension of time in this court.

   When the matter was last before the court, I made an order that the only issue to be determined today was the issue of whether an order nisi should issue.  For an order nisi to issue, the applicant must demonstrate that he has an arguable case in respect of the final relief claimed.  The applicant has today told me that his only concern with respect to the decision of the Tribunal in respect of which he seeks constitutional writs is that the Tribunal did not believe him.

   Whether or not an applicant is to be believed is at the heart of the jurisdiction of the Refugee Review Tribunal.  The Tribunal makes no error of jurisdiction or other error of law by simply determining that it does not believe an applicant.  As the applicant has not demonstrated that he has an arguable case for final relief, the application for an order nisi is refused.

   As the applicant is unrepresented, I consider it appropriate to add the following.  I have carefully reviewed the decision of the Refugee Review Tribunal myself.  I have been unable to identify any jurisdictional error or other error of law affecting that decision.  The application to this court is therefore dismissed.”

3. The applicant is a citizen of Pakistan who claimed to be a member of and active in the Pakistan Socialist Party.  In view of her Honour's reasons it is unnecessary to set out the facts and claims in any detail, it being evident that the Refugee Review Tribunal rejected the claims on credibility grounds.  Her Honour was satisfied that the applicant had not demonstrated that he had any arguable case for final relief and she was also satisfied, having carefully reviewed the decision of the Tribunal, that there was no jurisdictional error or any other error of law affecting the decision.

4. The applicant relies upon an affidavit sworn on 23 November 2004.  The affidavit states:

   “I am the applicant.  I am unrepresented.  Please give me opportunity to file and serve notice of appeal.  Please accept my leave to appeal.”

5. The applicant also filed a draft notice of appeal which states grounds of appeal in very general terms.  The draft notice included reference to the decisions of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 (“Muin”) and Plaintiff S157 of 2002 [2003] FCA 1 but no particulars are provided. There was no evidence before me to suggest that the applicant had proved any of the factual matters which would be necessary to make out a claim in accordance with the decision of the High Court in Muin; see NADR of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 465 at [25] – [26]..

6. It follows that even though the application for leave to appeal was filed only two weeks out of time, the application must be refused because there are no prospects of success on an appeal.  It is well established that even if special circumstances are identified the Court has a discretion to refuse an extension of time.  One of the factors which is of particular importance is the question of whether there is any prime facie strength in the proposed ground of appeal; see Howard v Australian Electoral Commission [2000] FCA 1767 per Branson J at [7].

7. I am satisfied that there are no prospects of success on appeal and accordingly the application for an extension of time must be refused. 

8. The orders are, firstly, that the application is dismissed.  Secondly, I order the applicant to pay the respondent's costs of this application which I fix in the amount of $950.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             23 December 2004

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Ms B Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 December 2004
Date of Judgment:	22 December 2004