CZAL v Minister for Immigration and Multicultural Affairs

[2006] FCA 89

FEDERAL COURT OF AUSTRALIA

CZAL v Minister for Immigration and Multicultural Affairs [2006] FCA 89

MIGRATION – no point of principle

CZAL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
ACD 24 OF 2005

MOORE J
13 FEBRUARY 2006
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	ACD 24 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

CZAL
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

13 FEBRUARY 2006

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

1.The application to extend time within which to seek leave to appeal be dismissed.

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

3.The first respondent serve on the applicant at his address for service the reasons for judgment and the orders.

4.The Refugee Review Tribunal be joined as a 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	ACD 24 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

CZAL
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MOORE J
DATE:	13 FEBRUARY 2006
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. This is an application to extend time in which to seek leave to appeal from a judgment of a Federal Magistrate of 10 August 2005.  That judgment concerned an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 14 April 2003.  The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse the applicant a protection visa.  The Federal Magistrate dismissed the application on the basis that the decision of the Tribunal was a privative clause decision and the application was incompetent because it had not been filed within the time prescribed.  That decision was correct.

2. The Federal Magistrate's decision was made against a background in which the applicant had already litigated, in the Federal Magistrates Court, the Federal Court of Australia and the High Court, the question of whether the Tribunal had fallen into jurisdictional error in affirming the delegate's decision.  The applicant failed to establish in any of those proceedings that the decision of the Tribunal was attended by jurisdictional error.

3. Some of these matters were canvassed with the applicant on 22 November 2005, when the matter was first listed for hearing.  On that occasion, the applicant made no submissions which would indicate that the application for an extension of time was likely to have any prospect of success, although it must be accepted that the primary focus of the discussion was directed to the question of whether an order should be made declaring the applicant a vexatious litigant. Ultimately, that matter was not pursued by the Minister.

4. The applicant has not appeared at the hearing today. Yesterday he sent a medical certificate to my chambers by facsimile purporting to certify that he was not fit for work and, I infer, also not fit to appear today.  The evidence is not particularly satisfactory.  However, erring on the side of caution, while I will make orders dismissing the application, I will also direct that the Minister serve on the applicant at his address for service, a copy of these reasons and a copy of the orders.  Those orders will not, on the Minister's undertaking, be entered for 21 days.  In that period, it will be open to the applicant to apply to the Court to set aside the orders if grounds for doing so can be established.

5. In my opinion, if time was extended and leave given, it is highly unlikely that the appellant would have any prospects of succeeding in the appeal.  For those reasons, the application to extend time should be refused with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:      

Dated:            20 February 2006

The Applicant appeared in person
Counsel for the Respondent:	A Chand
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	13 February 2006
Date of Judgment:	13 February 2006