M1024 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 534

FEDERAL COURT OF AUSTRALIA

M1024 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 534

M1024 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V194 OF 2004

MERKEL J
19 MARCH 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V194 OF 2004

BETWEEN:	M1024 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	19 MARCH 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT the application for leave to extend time is refused 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
VICTORIA DISTRICT REGISTRY	V194 OF 2004

BETWEEN:	M1024 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	19 MARCH 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In this matter I have an application for extension of time to file a notice of appeal or an application for leave to appeal from a decision of Finkelstein J refusing an order nisi.  When this matter came before the Court on the last occasion, which was 15 March, the applicant didn’t appear.  I was concerned about whether he had notice of the hearing and adjourned it until today to enable him to receive notice of today’s hearing.  The solicitor for the Minister has taken reasonable steps to try to ensure that the applicant has notice.  It would appear that he may have left the address at which he has given the Court because a previous letter sent to that address has been returned.

2. I have carefully considered the material and it seems to me that any appeal would have no prospect of success.  The material before Finkelstein J plainly fell short of raising an arguable case for an order nisi and it appears his Honour formed that view and as a result refused the application before him.  In circumstances where an appeal has no prospect of success, making an order to extend time to enable an appeal would be a futile exercise and, accordingly, it is appropriate to refuse the application for an extension of time with costs.

3. I would emphasise that the entire process to date is interlocutory.  If the applicant wished to put forward an arguable case, nothing ordered by Finkelstein J

   
   

   or by me today would preclude that.  The application for leave to extend time is refused with costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:            3 May 2004

For the Applicant:	No appearance for the applicant
Counsel for the Respondent:	Mr G Carroll
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 March 2004
Date of Judgment:	19 March 2004