FEDERAL COURT OF AUSTRALIA

Applicant S1135 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 581

APPLICANT S1135 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N345 of 2004

JACOBSON J

4 MAY 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent's costs of the application as taxed or assessed or as agreed between the parties.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This purports to be one of six applications for leave to appeal against the judgment of Emmett J given on 20 February 2004 refusing to grant an order nisi.  The application was filed out of time on 15 March 2004.  No notice of motion for an extension of time was filed but I will treat the application as though it were a motion for an extension.  I do so notwithstanding that there is nothing in the affidavit about the reasons for the delay. Nevertheless, I do not decide the application on that ground. 

2                     The relevant background to the proceedings and the reasons why his Honour refused to make an order nisi are referred to in my judgment in the matter of Applicant S1198 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 577. 

3                     The applicant filed an affidavit in support of her application for leave to appeal or extension of time.  The affidavit states that the applicant has no legal knowledge and has no knowledge that she had to file an application for leave to appeal within seven days.  The applicant also said in her affidavit that she has a strong case to prove her claim for a protection visa and that the facts of her case were ignored.

4                     The applicant appeared before me this morning in person with a Sri Lankan interpreter.  She appeared by telephone link to Melbourne.  One of the submissions she put to me was that she would like the case transferred to Melbourne.  However, I have heard the motion this morning on the telephone and it is therefore unnecessary for the proceedings to be transferred to the Victorian registry. 

5                     The only submission which the applicant put before me was that she had been helping a candidate in her political activities in Sri Lanka.  I assume this was said to be a ground for her claim to have a well-founded fear of persecution.  However, I cannot review the merits of the application and the applicant has not satisfied me that there is any arguable case that the decision of Justice Emmett was wrong. 

6                     In short, nothing has been put before me either in the affidavit or orally to suggest that there was any doubt about the correctness of his Honour's judgment.  I am satisfied that an extension of time would be futile because there are no prospects of success on the application for leave to appeal.

7                     The applicant stated that she does not have any legal knowledge and would like pro bono legal assistance.  However, there is no reason why an order under O80 of the Federal Court Rules for such assistance would be made in this case.  As I have said, there is nothing to suggest any doubt about the correctness of his Honour's decision. 

8                     Accordingly the orders that I will make are that the application is dismissed and the applicant is to pay the respondent's costs of the application as taxed or assessed or as agreed between the parties.

Associate:

Date:                4 May 2004