FEDERAL COURT OF AUSTRALIA

Applicants S252 of 2003 v Minister for Immigration and Multicultural Affairs

[2006] FCA 1570

APPLICANTS S252 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 831 OF 2006

BLACK CJ

1 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an extension of time to file an application for leave to appeal be dismissed.

2.                  The application for leave to appeal be dismissed.

3.                  The first and second applicants pay the costs of the first respondent fixed in the sum of $800.00.

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

REASONS FOR JUDGMENT

(Revised from transcript)

1                     This is an application for leave to appeal from a judgment of a judge of this Court of 11 April 2006 dismissing an application for an order nisi for the issue of constitutional writs.  The application was commenced in the High Court of Australia and remitted to this Court by order of the High Court on 30 May 2003.  The applicants seek judicial review of a decision of the Refugee Review Tribunal made on 12 August 1999 affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant protection visas to the three applicants.  The male applicant appeared in person assisted by Mr Rajadurai, an interpreter.

2                     The matter proceeded in form as an application for leave to appeal, evidently on the footing that the order made by the learned judge was considered to be interlocutory in character.  Mr Markus, who appeared for the Minister, has however very properly drawn my attention to the possibility of there being a different view of that order, whilst at the same time pointing out that if the order was final in character, such as to give the applicant a right of appeal, that right had not been exercised within time.  He says that were an application for an extension of time to be made it should be refused, fundamentally because the case is without any merit at all.

3                     The history of this matter is outlined in the reasons for judgment of the learned primary judge and it is unnecessary for me to set that out again here: see [2006] FCA 374.  The primary judge explained in his reasons why he considered that the order nisi should not be granted. 

4                     When the matter came on for hearing before me today I asked the applicant, with the assistance of his interpreter, to submit what he said was erroneous about the decision of the primary judge.  In substance, his response was that he feared a return to India.  He also raised issues about his state of health.  He did not put any argument about the correctness in law of the primary judge's decision.  Whilst, in a sense, it would be wrong to characterise the proceedings as a mere formality, because the applicant plainly has concerns about his and his family’s position – which he sought to articulate before me – he has not advanced any argument to show any error on the part of the judge from whose decision he now seeks leave to appeal.  In those circumstances and, I should add, there being no appearance of error in the learned primary judge’s decision, the application for leave to appeal, were it within time, would have to be dismissed.

5                     Mr Markus has submitted that the application for leave was out of time – albeit only just – and this appears to have been recognised in that the formal application of leave to appeal seeks an order that compliance with O 52 r 5(2) of the Federal Court Rules be dispensed with.  I agree that the application is out of time.  Ordinarily, no prejudice having been urged on the part of the Minister, it would require very little by way of explanation or excuse before an order dispensing with compliance would be made.  In the present case, however, since the application as it is put to me is devoid of merit, I would refuse the application to extend time and dismiss the application for leave to appeal.

6                     Formally, therefore, the dismissal is because the application is out of time and I decline the application for an extension of time.  The substance of the matter, however, is that, as Mr Markus also submitted, no merit has been shown.  No reason has been shown to overturn the primary judge’s decision.

7                     If, contrary to the view that I have taken (in view of the express language of his Honour's order), I concluded that the order was not interlocutory and that the applicants accordingly had a right of appeal, I would not have exercised the power to extend time to commence proceedings by way of appeal for the same reason as I have not extended time for the application for leave to appeal.  On the other hand, had I considered that this was a case which, in some way, had some merit, I expect that I would have taken a quite different course. 

8                     The application for leave to appeal is dismissed because it is out of time.  The application to extend time is dismissed.  The first and second applicants must pay the costs of the Minister, which I fix at $800.00.

Associate:

Dated:              20 November 2006