FEDERAL COURT OF AUSTRALIA

Applicant S328 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 976

APPLICANT S328 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1049 OF 2006

MOORE J

4 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.
2. The applicant pay the first respondent's costs.

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a judgment of Federal Magistrate of 10 May 2006 dismissing the applicant's application filed 20 February 2006 as incompetent: Applicant S328 of 2003 v Minister for Immigration & Anor [2006] FMCA 869. A delegate of the Minister refused to grant the applicant a protection visa on 22 December 1998, which was affirmed by the Refugee Review Tribunal on 21 June 2000.

2                     In the Federal Magistrates Court, the Minister applied for the application to be dismissed as incompetent on two bases. First, insofar as the applicant sought to challenge the delegate's decision, that decision was a "primary decision" in relation to which the Federal Magistrates Court lacked jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth). Secondly, insofar as the applicant sought review of the Tribunal's decision, the application was out of time and an extension of time should not be granted, as the Court could not be satisfied that it was in the interests of justice to do so having regard to the applicant's delay and previous judicial proceedings in relation to the same Tribunal decision. Apart from jurisdictional issues, the Minister also submitted that the application did not raise an arguable case.

3                     Her Honour dismissed the applicant's application essentially for the reasons advanced by the Minister. Her Honour found that the period of delay after actual notification of the Tribunal's decision was 81 days, being narrowly within the maximum period of 84 days for which the Court had power to extend time for filing, under s 477(2) of the Act. The period was calculated on the basis of 1 December 2005 being the date of deemed notification pursuant to Part 2, item 42 of Schedule 1 to the Migration Litigation Reform Act 2005 (Cth). Her Honour found that the applicant had offered no explanation for the delay.

4                     Her Honour had regard to the lengthy history of litigation in which the applicant had unsuccessfully sought to challenge the delegate and the Tribunal's decision: see [16] to [24]. That history commenced with an application for an order nisi in the High Court filed on 18 June 2003. That application was remitted to this Court. Various proceedings in this Court followed: see Applicant S328 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1353, Applicant S328 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1753 and Applicant S328 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 103. It is sufficient to note, as her Honour did, that the applicant has had many opportunities to demonstrate reviewable error in the Tribunal's decision and has failed to do so.

5                     No error has been shown or is apparent in the approach taken by her Honour in refusing to extend the time for filing of the application or concluding that it was, in one respect, incompetent. The applicant therefore has no real prospects of success in any appeal were leave granted. Leave to appeal is refused and the applicant is to pay the first respondent’s costs.

Associate:

Dated: 4 August 2006