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

[2005] FCA 43

FEDERAL COURT OF AUSTRALIA

Applicant VEAZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 43

MIGRATION – no error of law – application dismissed

The Commonwealth; ex parte Marks (2000) 177 ALR 491, applied

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

V 41 OF 2005

MARSHALL J
3 FEBRUARY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 41 OF 2005

BETWEEN:	APPLICANT VEAZ OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	3 FEBRUARY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for an extension of time to appeal be dismissed.

2.The applicant pay the respondent’s costs of the application for an extension of time within which to appeal.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 41 OF 2005

BETWEEN:	APPLICANT VEAZ OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	3 FEBRUARY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 2 October 2003, Gray J dismissed an application by the applicant for judicial review of a decision of the Refugee Review Tribunal (“the RRT”).  The RRT rejected the applicant’s application for a protection visa.

2. On 17 January 2005, well over one year after the judgment of Gray J, the applicant filed an application for leave to appeal from his Honour’s judgment, out of time.

3. In an affidavit filed in support of his application the applicant sought to explain the reasons for this delay.

4. It is unnecessary to canvass those reasons, in any detail, save that it seems that the applicant has exhausted all other possible means of staying in Australia. Nevertheless, as at 30 October 2003, outside the 21 day time limit for an appeal, the applicant made a deliberate decision to seek the respondent’s intervention under s 417 of the Migration Act 1958 (Cth) and not to seek to appeal from Gray J’s judgment. This fact, together with the length of time which has elapsed since October 2003, is a sufficient basis to reject the application for an extension of time. As McHugh J said in The Commonwealth; ex parte Marks (2000) 177 ALR 491 at [16], in all but exceptional cases time limits should be rigidly applied when in excess of one year has elapsed since the relevant decision and the commencement of proceedings.

5. Additionally, an extension of time should not be granted when to do so would be futile.  Having carefully considered the reasons for judgment of Gray J, I consider that his Honour’s reasons are free from error.  Indeed, the applicant was, on the hearing of his application today, unable to point to any arguable appealable error in his Honour’s reasons for judgment, but submitted a further affidavit which asserted that the RRT had erred in its treatment of factual matters.  Factual issues are in the province of the RRT and not the Court, which can only intervene to correct legal error in the reasons of the RRT or its process.

6. The Court will order that the application for an extension of time within which to appeal be dismissed, with costs.

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

Associate:

Dated:             3 February 2005

The Applicant represented himself.
Counsel for the Respondent:	Ms S. Weavers
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	3 February 2005
Date of Judgment:	3 February 2005