Applicants S1706 of 2003 v Minister for Immigration and Citizenship

[2007] FCA 762

FEDERAL COURT OF AUSTRALIA

Applicants S1706 of 2003 v Minister for Immigration and Citizenship [2007] FCA 762

APPLICANTS S1706 OF 2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 359 OF 2007

MOORE J
24 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 359 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANTS S1706 OF 2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	24 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The first applicant pay the first respondent's costs.

3.The Refugee Review Tribunal be added as second respondent.

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 359 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANTS S1706 OF 2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	24 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to seek leave to appeal a judgment of a Federal Magistrate of 9 November 2004: see Applicants S1706/2003 v Minister for Immigration [2004] FMCA 782. His Honour upheld the Minister's notice of objection to competency and dismissed the application for judicial review of a decision of the Refugee Review Tribunal made on 5 March 1998 as incompetent and an abuse of process. The Tribunal had affirmed a decision of a delegate of 19 August 1997 refusing to grant the applicants a protection visa. His Honour also ordered that no further application by the applicants to review the decision of the Tribunal be accepted for filing except with leave of the Court. The applicant did not appear at the hearing of the Minister's motion before the Federal Magistrate on 9 November 2004, nor did the solicitor who had earlier appeared for the applicant at a directions hearing on 11 October 2004.

2. There is a lengthy history of unsuccessful litigation in which the first applicant ("the applicant") has sought to challenge the Tribunal's decision.  The first applicant ("the applicant") first sought to challenge the Tribunal's decision in this Court, which dismissed by consent an application for an order of review on 12 August 1998.  On 22 December 2000, the applicant joined the Lie class action in the High Court. Those proceedings were dismissed. Then on 29 May 2002, further proceedings were filed in the High Court for review of the Tribunal's decision. That application was remitted instanter to this Court, where it was refused by Emmett J on 20 February 2004. The application to the Federal Magistrates Court was filed on 22 September 2004. After that application was dismissed, the applicant made five separate applications to the Minister under s 417 of the Migration Act 1958 (Cth), the most recent of which was made on 8 March 2007, all of which were refused. Some two and a half years after the Federal Magistrate's decision, the applicant now seeks to challenge that decision in this Court.

3. At the hearing, the applicant requested an adjournment for a few weeks to allow her to consult her adviser who she described as her brother's friend who works for "some solicitor".  She said that he had not had enough time to prepare a submission.  The solicitor appearing for the Minister opposed the adjournment.  I am not satisfied that there would be any utility in granting the adjournment.

4. The Federal Magistrate concluded that the application was incompetent because it was filed outside the mandatory statutory time limits.  This conclusion was clearly correct.  It was also open to the Federal Magistrate to conclude that the application was an abuse of process in light of the history of unsuccessful litigation instituted by the applicant in relation to the Tribunal's decision.  The applicant has not identified any error in the Federal Magistrate's decision. 

5. The grounds of appeal identified in the draft notice of appeal are formulaic and effectively meaningless in the absence of any particulars. There is no attempt to identify an error in the Federal Magistrate's decision. The first ground provided that the Federal Magistrate failed to find "error law", "jurisdictional error", "procedural fairness" and "relief under s 39B" of the Judiciary Act 1903 (Cth). Grounds 2 and 3 referred to two well known High Court decisions, Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 and Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476, without any elaboration as to their potential relevance to this case.

6. The applicant's explanation for the delay in filing the present application related to her applications to the Minister.  In any event, I am satisfied that an extension of time should not be granted on the basis that there is no prospect of success of any appeal.

7. The application for an extension of time should be refused.  The applicant should pay the first respondent's costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        24 May 2007

The First Applicant appeared in person
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	9 May 2007
Date of Judgment:	24 May 2007