NATG v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1742

FEDERAL COURT OF AUSTRALIA

NATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1742

House v The King (1936) 55 CLR 499 applied

NATG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1527 OF 2004

TAMBERLIN J
SYDNEY
16 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1527 OF 2004

BETWEEN:	NATG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	16 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time to file and serve a notice of appeal is dismissed.

2.The deemed application for leave to appeal is dismissed.

3.The applicant pay the respondent’s costs.

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 1527 OF 2004

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

JUDGE:	TAMBERLIN J
DATE:	16 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal.  The applicant is over two months out of time and no explanation has been given as to why he has allowed such time to elapse. The application and the purported appeal are from a judgment of a judge of this Court given on 19 July 2004, in which his Honour dismissed an application to set aside orders that he had made on 11 March 2004, dismissing the applicant’s application for review. 

2. When the matter came on for hearing before me, the applicant did not raise any grounds to suggest that his Honour the primary judge had made an error of law or principle.  I have had regard to the detailed chronology provided by the respondent (“the Minister”), which illustrates a history in which the applicant has failed, over a considerable period of time, to comply with directions of the Court, or to place any substantive material before the Court that is capable of supporting his case.

3. The Notice of Appeal attached to the Application for Extension of Time simply says that his Honour erred in law in holding that there was no basis to conclude that the Tribunal misunderstood the word “persecution”, as defined in the Convention, when it dismissed his application on the basis there were no coherent submissions as to why a previous order should be set aside, and that it did so without giving the applicant a reasonable opportunity to explain why submissions were not put forward in time.  The Minister points out that the application is a considerable time outside the prescribed period.  In these circumstances, I am not persuaded that the application for extension of time to file and serve a notice of appeal ought to be granted. 

4. The Minister also points out that leave to appeal is required because the decision of the primary judge was interlocutory.  I am satisfied that the primary judge’s decision was interlocutory in nature, and am content to treat the application for an extension of time and as an application for leave to appeal.  I am satisfied, having regard to the relevant principles, that his Honour’s decision is not attended with sufficient doubt to warrant its being reconsidered by the Full Court.  Indeed, no grounds at all have been put before me to substantiate the case, and I am not persuaded that any substantial injustice would result if leave were refused, even assuming the decision were wrong.

5. I am also satisfied that this was a discretionary judgment on the part of his Honour, and that the principles in House v The King (1936) 55 CLR 499 are applicable. In these circumstances, I consider that the application for an extension of time and also the deemed application for leave to appeal should be dismissed 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 Tamberlin.

Associate:

Dated:             16 December 2004

The Applicant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 December 2004
Date of Judgment:	16 December 2004