NALK v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1463

FEDERAL COURT OF AUSTRALIA

NALK v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1463

NALK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1699 of 2005

BRANSON J
5 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1699 of 2005

BETWEEN:	NALK APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	5 OCTOBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs fixed in the amount of $700.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1699 of 2005

BETWEEN:	NALK APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	5 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from a judgment of the Federal Magistrates Court whereby his application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) was dismissed as incompetent and a direction made that no further application by the applicant for review of the decision of the Tribunal made on 30 January 2003 is to be accepted for filing without the leave of the Federal Magistrates Court.  It is plain that the judgment of the Federal Magistrates Court is an interlocutory judgment.  The applicant requires leave to appeal from it. 

2. Order 52 r 4(2) of the Federal Court Rules requires that an application for leave to appeal from a judgment other than an interlocutory judgment of the Court is to be accompanied by an affidavit showing the nature of the case, the questions involved and the reasons why leave should be given.

3. The affidavit filed by the applicant in support of the present application does not satisfy the requirements of Order 52 r 4(2). 

4. The substance of the affidavit filed by the applicant is contained in paragraphs 5 to 7 of his affidavit which are in the following form:

   ‘5.In the fix hearing date I was attended in the court.  I provided my oral arguments.  The honourable Federal Magistrates did not consider my argument.  I have no barrister.  I did not get free barrister to assists me.  I am not satisfied with the honourable federal magistrates order.

   6.I do not know the federal court procedure.  I am unrepresented.

   7.Considering the circumstance stated above, I am expecting that Federal Court will make favourable decision in relation to my appeal.’

5. The reasons for judgment of the Federal Magistrates Court summarise the history of the applicant's endeavours to challenge the decision of the Tribunal that he was not entitled to a protection visa.  That summary is as follows:

   ‘a)On 14 March 2003 the applicant lodged an application in the Federal Court for review of the Tribunal’s decision.  The matter was subsequently transferred to the Federal Magistrates Court.

   b)On 4 September 2003 Federal Magistrate Raphael dismissed the applicant’s application for review of the Tribunal’s decision.

   c)On 23 September 2003 the applicant filed a notice of appeal in the Federal Court.

   d)On 13 February 2004 His Honour Justice Moore dismissed the applicant’s appeal from the decision of Raphael FM.

   e)On 12 March 2004 the applicant lodged an application for special leave to appeal in the High Court.

   f)On 13 September 2004 the application for special leave was deemed abandoned.

   g)On 27 September 2004 the applicant lodged a further application for special leave to appeal in the High Court.

   h)On 27 April 2005 the application for special leave to appeal was dismissed by their Honours McHugh and Heydon JJ.

   i)On 18 May 2005 the applicant lodged an application in the Federal Magistrates Court for review of the Tribunal’s decision.’

6. The learned Federal Magistrate concluded that the decision of the Tribunal had been conclusively held to be a privative clause decision with the consequence that the application for judicial review, which had been filed more than 26 months after the delivery of the judgment of the Tribunal, was incompetent. 

7. The applicant has not attended Court this morning.  I am satisfied that he was aware of the date and time of the hearing of his application.  It should be recorded that it is now 15 minutes after the time when the matter was listed for hearing and not only has the applicant not responded to a call but the court officer has searched for him on level 16 without success.

8. In my view no doubt attends the judgment of the Federal Magistrates Court.  No purpose would be served by granting the applicant leave to appeal from it. 

9. The application is refused.  The applicant is to pay the respondent’s costs fixed in the sum of $700.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:              14 October 2005

The applicant did not appear.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 October 2005
Date of Judgment:	5 October 2005