FEDERAL COURT OF AUSTRALIA

Applicant S 1510 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 294

applicant S1510 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

NSD 1771 of 2004

ALLSOP J

24 MARCH 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The notice of appeal be dismissed as incompetent.

2.                  To the extent that the notice of appeal can be treated as an application for leave to appeal the notice of appeal be so treated.

3.                  Any application for an extension of time for filing an application for leave to appeal from the orders of the Court on 11 November 2004 be dismissed.

4.                  The appellant/applicant pay the respondent’s costs

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     On 11 November 2004, a Judge of this Court dealt with three matters in one set of reasons, making separate orders in those three matters.  One of those matters concerned the applicant before me, S 1510 of 2003. 

2                     The nature of the application appears from the comprehensive reasons of the learned primary judge who delivered a reserved judgment on 11 November 2004.

3                     The learned primary judge was dealing with applications (including one made by Applicant S1510) made under s 39B of the Judiciary Act 1903 (Cth).  As can be seen from the reasons of the learned primary judge the application concerned the refusal of a request made to the Minister under s 417 of the Migration Act 1958 (Cth) (the “Act”).  Prior to this application to the Minister under s 417, the applicant had been denied a protection visa by a delegate of the Minister and the Refugee Review Tribunal.

4                     The Minister submitted before the primary judge that there was no jurisdiction in this Court to entertain an application for review under s 39B of a decision in relation to s 417.  In particular, reference was made to s 476(2) of the Act.

5                     The learned primary judge acceded to that submission based on the authority of the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Ozmanian (1996) 71 FCR 1.  His Honour was of the view Ozmanian concluded argument in respect of the issue and that based on that case and the provisions referred to, this Court had no jurisdiction to review the refusal of the Minister and the Department to consider the application under s 417.

6                     That conclusion was correct.  Thus, his Honour was correct in dismissing the application as incompetent.

7                     The appellant filed submissions, which, without elaboration, contested the notion that his Honour’s orders were interlocutory.  The submissions also dealt with the underlying decision of the Departmental officer concerning s 417.  The submissions did not grapple with the fundamental problem of the operation of s 476(2) of the Act.

8                     There appears to be no basis upon which an appeal from the primary judge would succeed.  In my view, there is no utility in granting any leave to appeal or any extension of time to seek leave to appeal.

Associate:

Dated:              24 March 2005