NARY v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1022

FEDERAL COURT OF AUSTRALIA

NARY v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1022

NARY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1065 of 2005

WILCOX J
14 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1065 OF 2005

BETWEEN:	NARY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	14 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for an extension of time to appeal be dismissed.

2.        The applicant pay the costs of the respondent assessed at $1,000.

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 1065 OF 2005

BETWEEN:	NARY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	14 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for an extension of time to appeal to the Court against a decision of Federal Magistrate Driver given on 20 February 2003.  His Honour dismissed an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’) that was given on 21 June 2002.  The applicant is apparently now being held at Villawood Detention Centre. 

2. A considerable time elapsed between the date of the Magistrate's decision and the filing on 28 June 2005 of the application for an extension of time.  The Court would require special circumstances to grant an extension of time after such a lengthy delay.

3. I have sought to obtain from the applicant some idea as to whether there is a legal issue meriting attention in this Court.  He has put submissions to me regarding the factual correctness of the Tribunal's findings.  He said he would like to produce some further evidence.

4. However, the Court does not have power to review the Tribunal's findings of fact.  Nor would it be justified in setting aside the Tribunal's decision simply to enable the applicant to produce new evidence.  As I explained to the applicant, the Court can intervene only if there is jurisdictional error.  For me to grant an extension of time, I would need to be persuaded that there is at least an arguable case of jurisdictional error. 

5. The Magistrate could find no jurisdictional error.  I have read the Tribunal's decision and I can see no apparent jurisdictional error. 

6. Although I specifically directed the applicant's attention to the point, explaining to him what was meant by jurisdictional error, the applicant has put no submission that could conceivably be one of jurisdictional error.

7. Under these circumstances, it would be a miscarriage of my discretion for me to grant leave to appeal.  The appeal would have no prospect of success.

8. The appropriate order is that the application for an extension of time to appeal be dismissed with costs.  I assess the costs at $1000.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            28 July 2005

The Applicant appeared in person.
Solicitor for the Respondent:	Ms B Rayment of Sparke Helmore
Date of Hearing:	14 July 2005
Date of Judgment:	14 July 2005