Applicant S8 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 64

FEDERAL COURT OF AUSTRALIA

Applicant S8 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 64

MIGRATION – no question of principle

Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited

APPLICANT S8 OF 2004 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1649 OF 2004

HELY J
28 JANUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1649 OF 2004

BETWEEN:	APPLICANT S8 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	28 JANUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal 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	NSD 1649 OF 2004

BETWEEN:	APPLICANT S8 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	28 JANUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant commenced proceedings in the High Court of Australia by an application for an order nisi seeking prerogative relief in relation to a decision of the Refugee Review Tribunal (‘The RRT’) which affirmed a decision of the Minister’s delegate not to grant the applicant a protection visa.

2. The proceedings were remitted to the Federal Court of Australia and were heard by Allsop J on 29 October 2004.  On 1 November 2004 his Honour published reasons for judgment.  In those reasons his Honour made it clear that he was dealing with the matter on an interlocutory basis, and he rejected the draft order nisi on the ground that the applicant had not put forward any arguable case for the making of an order nisi.

3. The authorities establish that a refusal of an application for an order nisi is an interlocutory judgment and so an appeal from the judgment may only be brought with leave.  Allsop J extended the time in which an application for leave to appeal might be made up to and including 15 November 2008. 

4. On 11 November 2004 the applicant filed a document styled ‘Notice Of Appeal’ which purported to appeal from the decision of Allsop J.  On 19 November 2004 the respondent lodged a notice of objection to the competency of the appeal.  The matter came before me this morning as duty judge and the applicant told me that he wished his document styled ‘Notice Of Appeal’ to be treated as an application for leave to appeal.  The respondent consented to that course.

5. I have therefore embarked upon a consideration this morning of an application for leave to appeal. In the course of Allsop J’s reasons for decision, his Honour said ([2004] FCA 1422 at [15]):

   ‘Put shortly, the applicant’s outline of submissions provides no foundation whatsoever for any argument that there has been jurisdictional error by the Tribunal.’

6. The document styled ‘Notice of Appeal’ does not contain any recognisable or intelligible ground of appeal and there is nothing in the document which indicates any error or the likelihood of any error on the part of Allsop J.

7. There are allegations of error in the document without any indication as to how it is said that the error arose.  There is also a reference to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 but as Allsop J explained, the decision in that case is really of no relevance to the present application.

8. The only matter that the applicant put to me this morning in the course of his oral submissions is that his life is in danger if he is to return to Pakistan.  Hence he does not wish to return to that country.  That amounts to an assertion that the RRT should have come to a different decision than the decision to which it came, but in effect that seeks a merits review of the RRT’s decision.  It does not demonstrate jurisdictional error, nor does it indicate that the primary judge was guilty of any error.

9. An applicant seeking leave to appeal in circumstances such as the present has to be able to demonstrate that there would be some utility in granting leave, which means that he must establish that he would have some prospect of success in the appeal.  On the material before me, the applicant has no prospects of success whatsoever.  Hence the application for leave to appeal should be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            9 February 2005

The applicant appeared in person
Counsel for the Respondent:	A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 January 2005
Date of Judgment:	28 January 2005