NBJB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1351

FEDERAL COURT OF AUSTRALIA

NBJB v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1351

NBJB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1375 of 2004

WILCOX ACJ
13 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1375 of 2004

BETWEEN:	NBJB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX ACJ
DATE OF ORDER:	13 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for extension of time be dismissed.

2.The applicant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

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 1375 of 2004

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

JUDGE:	WILCOX ACJ
DATE:	13 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX ACJ:

1. This is an application for an extension of time to appeal against a decision given by Madgwick J on 24 March 2000.  The applicant told me that she was unaware that she had a right of appeal until about one year ago.  Apparently she delayed, even then, because she wanted to obtain further material. 

2. The delay before applying for an extension of time is considerable.  The Court would not normally grant leave after an interval of four and a half years.  However, it seems to me there is a more fundamental reason for refusing the application.

3. Madgwick J was unable to detect a jurisdictional error affecting the decision of the Refugee Review Tribunal (‘the Tribunal’) to affirm the delegate’s decision to refuse her application for a protection visa.  If there is no jurisdictional error, any appeal would be hopeless.  The applicant told me that she thought the Tribunal was biased, but that was not a ground argued before Madgwick J.

4. Madgwick J dismissed the applicant's application because he could not detect jurisdictional error.  Nothing has been said to indicate that his Honour was wrong about that.  I have endeavoured to explain to the applicant the limitations on the Court's jurisdiction.  She has been unable to identify any ground that might be regarded as jurisdictional error, except for the new claim of bias by the Tribunal.

5. Under the circumstances, it seems to me that an appeal would have little prospect of success.  Accordingly, it is not appropriate to grant an extension of time.  I say this with some regret.  The applicant has been in Australia for a long time.  Her grandson has grown up in this country.  It seems most unfortunate that she and he should now be facing the prospect of having to leave Australia.  However, that is not a sufficient reason for me to exercise the Court's jurisdiction in extending time. 

6. The application for an extension of time must be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Wilcox.

Associate:

Dated:            29 October 2004

The Applicant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Ms D Watson, Australian Government Solicitor
Date of Hearing:	13 October 2004
Date of Judgment:	13 October 2004