FEDERAL COURT OF AUSTRALIA

S1424 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1079

Applicant S1424/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

NSD 1094 of 2005

EDMONDS J

29 JULY 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.          The application be treated as an application for leave to appeal and for an order dispensing with compliance with Order 52 r 5(2).

2.          The application be dismissed.

3.          The applicant pay the respondent’s costs fixed in the sum of $800.

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 GIVEN EX TEMPORE

(REVISED FROM THE TRANSCRIPT)

1                     This is an application for an extension of time to file and serve a notice of appeal against a judgment of Federal Magistrate Scarlett delivered on 8 June 2005.  The Federal Magistrate dismissed the applicant’s application to that court as an abuse of process.  The judgment below is therefore interlocutory and the applicant will require leave to appeal.  It follows that this application should be treated as an application for leave to appeal and for an order dispensing with compliance with O 52 r 5(2):  O 52 r 5(3).

2                     I indicated to the applicant that it was my preliminary view, having read the draft notice of appeal and the affidavit filed in the proceedings, that it would be futile to grant leave to appeal because any appeal would be unsuccessful.  The applicant says that since the making of his affidavit he has received further evidence from overseas and from Australia.  He would produce those documents if he were given the chance to appeal.  I invited the applicant to comment on a submission which was made to the court below that he had instituted these proceedings for the purpose of delaying or extending the his period of lawful stay in Australia and for that purpose only.  The applicant denied that this was the case, stating that he instituted the proceedings to save his life.

3                     After considering the Federal Magistrates reasons I could not find any basis for dismissing the applicant’s application as an abuse of process other than by reason of an acceptance of the respondent’s submission that the application had been made for the purpose of delay to extend the applicant's period of lawful stay in Australia.  It is this finding, therefore, that the applicant must assail in these proceedings.

4                     I am mindful of the fact that the period of delay in filing the present application is very short, perhaps only 2 days.  In considering whether I should grant leave I note that this is not the applicant’s first application to this Court.  Indeed, this is the third application.  The first application was commenced on 12 March last year and was discontinued in January this year.  The second application to this Court was dismissed by Emmett J on 20 February 2004.  In all the circumstances I am satisfied that I have no alternative but to refuse leave in this case.

5                     The respondent asks that I make a fixed costs order.  I order that the applicant pay the respondent’s costs in the amount of $800.

Associate:

Dated:              5 August 2005