Applicants S1706 of 2003 v MIAC

[2008] HCATrans 26

[2008] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S272 of 2007

B e t w e e n -

APPLICANTS S1706 OF 2003

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 FEBRUARY 2008, AT 9.45 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicants, a mother ("the applicant") and her two children, are citizens of Fiji.  On 20 August 1997 a delegate of the first respondent refused their applications for protection visas.  The Refugee Review Tribunal ("the Tribunal") rejected the application for review of that decision on 5 March 1998.  The Tribunal was not satisfied that threats made against the applicant were motivated by her race, nor was it satisfied that she was denied protection.  Discrimination that the applicant may have experienced did not constitute persecution.

Lloyd-Jones FM upheld the first respondent's notice of objection to competency and dismissed the applicants' application as an abuse of process on 9 November 2004.  The applicant made no appearance.

Moore J dismissed the application for an extension of time in which to seek leave to appeal to the Federal Court.  His Honour held that the Federal Magistrate's conclusion that the application was incompetent as being outside the mandatory statutory time limit was clearly correct, and it was open to the Federal Magistrate to conclude that the application was an abuse of process.

The applicant's case before this Court does not address the threshold issue that the proceedings she sought to institute in the Federal Magistrates Court were incompetent and an abuse of process. There is no reason to doubt the correctness of the Federal Court decision. Further, by reason of s 33(2) of the Federal Court of Australia Act 1976 (Cth), any appeal to this Court would be incompetent. Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Kiefel J and myself.

AT 9.47 AM THE MATTER WAS CONCLUDED