Applicant S527 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1485

FEDERAL COURT OF AUSTRALIA

Applicant S527 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1485

APPLICANT S527 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD1444 OF 2004

BENNETT J
8 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1444 OF 2004

BETWEEN:	APPLICANT S527 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	8 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The question of costs be reserved.

THE COURT DIRECTS THAT:

3.The respondent file and serve an affidavit setting out the basis for the sum of costs sought by 10 November 2004.

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	NSD1444 OF 2004

BETWEEN:	APPLICANT S527 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BENNETT J
DATE:	8 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from interlocutory orders and a judgment of Whitlam J given on 2 September 2004.  His Honour dismissed as not disclosing an arguable case the applicant's application for an order nisi filed in the High Court of Australia on 2 October 2003 and remitted to this Court on 16 February 2004.  The applicant also seeks an extension of time in which to apply for leave to appeal as this application was made out of time. 

2. Justice Whitlam referred to the applicant's history both personal and procedural. That procedural history included the following:

   1.On 9 January 2002, the decision of Refugee Review Tribunal (‘the Tribunal’) was handed down;

   2.On 1 February 2002, the applicant filed an application for judicial review of that decision;

   3.On 20 March 2002, that application was listed for hearing;

   4.On 18 March, the applicant filed a notice of discontinuance of those proceedings; and

   5.On 2 October 2003, the applicant filed an application for an order nisi in the High Court. 

3. As to the application before him, Whitlam J said the following:

   ‘The affidavit in support of the application is complete gibberish.  It does not contain a hint of any jurisdictional error on the part of the Tribunal.  The grounds are apparently as hopeless in substance as they are opaque in expression.  The applicant declined to make any oral submissions.  An arguable case is required to obtain an order nisi for constitutional writs.  The applicant has failed to make out such a case, and the application will accordingly be refused with costs.’

4. The grounds set out by the applicant in his application for leave to appeal refer only to the decision of the Tribunal. The grounds are as follows:

   ‘1.       The RRT decision was made by bad faith;

   2.The Tribunal member did not observe Migration Act properly in his decision;

   3.I am a genuine refugee applicant; I have no security in my previous country of residence;

   4.I will provide details of my grounds at the time of the hearing and the written submission.’

5. This application is brought out of time and in the applicant’s written submissions to this Court the only explanation for the delay is:

   ‘I changed my migration agent and that is why it took longer time for him to seek genuine advice.’

   When questioned the applicant informed me that he had changed his migration agent about two years ago.  

6. The applicant appeared before me in person, assisted by an interpreter.  When asked what he wished to say in support of this application he said that he cannot return to his country and that he wants his case to be remitted to the Tribunal.  No reference was made to the decision of Whitlam J. 

7. The applicant needs to establish whether in all the circumstances the decision from which leave to appeal is sought is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether any substantial injustice would result if leave to appeal were refused supposing the decision to be wrong.

8. The grounds of appeal do not indicate whether the decision from which leave to appeal is sought is attended by any doubt. Bearing in mind that the application before Whitlam J was to deal with whether there was an arguable case and that his Honour found that no hint of a jurisdictional error had been established, there is no indication of how substantial injustice would arise if leave to appeal were refused.  On its face therefore, the application seems doomed to fail. 

9. The applicant also filed a document entitled ‘Applicant’s submission’.  This document was not before Whitlam J.  It is an extensive document that refers to the decision of the Tribunal.  A number of grounds are cited in that document.  I have considered those grounds.  I asked the applicant if he wished to explain or elaborate any of them and he declined to do so.  So I am left to consider the document on its face.

10. Broadly speaking, the matters raised in the written submissions fall into the following categories:

    1.Assertions of breaches of various sections of the Migration Act 1958 (Cth) (‘the Act’), which sections seem to bear no relation to the case made out by the applicant or are sections of the Act that have since been repealed;

    2.General assertions made without any particularisation at all;

    3.Reliance on decisions of the High Court, such as Muin v Refugee Review Tribunal (2002) 190 ALR 601, without any factual basis to link those cases to the applicant;

    4.Matters of fact which cannot establish jurisdictional error;

    5.Allegations of bias without any particulars to support those allegations;

    6.Assertions of jurisdiction which are not in dispute; and

    7.Allegations of denial of procedural fairness which are not particularised or made out.

    There is also a general assertion of denial of natural justice based in large part upon a reference to documents said to have been before the Tribunal.  The solicitor for the respondent stated the applicant had not submitted any documents to the Tribunal.  In those circumstances, I asked the applicant whether he had submitted any documents to the Tribunal and he replied in the negative. 

11. Nothing that has been put to me by the applicant reveals any error on the part of Whitlam J or jurisdictional error on the part of the Tribunal.  Nothing has been put to me to explain why this application was brought out of time.

12. As was pointed out by the respondent’s solicitor, the applicant has had a great deal of time in which to prepare his case in so far as he alleges jurisdictional error on the part of the Tribunal.  In circumstances where the applicant seems to have declined the opportunity to make out his case before Whitlam J, and where there has been no demonstration of any miscarriage in the exercise by his Honour of his discretion, I find difficulty in seeing why the application for leave to appeal should be allowed.  No special reason, or indeed any good reason, has been advanced by the applicant as to why leave to appeal should be granted or, indeed, why an extension of time for lodging such an application for leave to appeal should be allowed.

13. Accordingly, the application for an extension of time in which to file the application for leave to appeal from the decision of Whitlam J is refused. 

14. The order of the Court is that the application is dismissed.  I note that the respondent seeks costs in the gross sum of $850.  I direct the respondent to file and serve an affidavit setting out the basis for the sum sought by Wednesday, 10 November 2004.  If I have not received any submissions from the applicant by Friday 12 November 2004 as to why those costs should not be payable and if I am satisfied as to the amount sought, I will proceed to make those orders in chambers.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             30 November 2004

The Applicant appeared in person assisted by an interpreter

Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 November 2004
Date of Judgment:	8 November 2004