FEDERAL COURT OF AUSTRALIA

 Ou v Minister for Immigration & Citizenship [2007] FCA 718

YOUNG OK OU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

NSD 326 OF 2007

MADGWICK J

7 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be refused.

2.                  The applicant is to pay the first respondent’s costs of the appeal assessed in the sum of $2,650.

3.                  The order refusing leave to appeal not take effect until 18 June 2007.

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

REASONS FOR JUDGMENT

HIS HONOUR

1                     This is a purported notice of appeal from a judgment of the Federal Magistrates Court given by Driver FM dismissing an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”), adverse to the would-be appellant, on the basis that the application for review had been lodged about 12 months after the time limited by s 477 of the Migration Act 1958 (“the Act”) and outside the period within which an application for extension of time might be made. 

2                     The purported notice of appeal complains of the Tribunal’s decision.  The affidavit in support of the purported appeal says that the application to the Federal Magistrates Court was accepted in the registry but that it should have been refused if “time was a real problem”, and that the applicant lost a fair chance of hearing and presenting a case to the Court. 

3                     This lady has apparently been over six years in the country and, according to her, there was a procedural error by her sponsor, despite the sponsor's account to the delegate of the Minister.  It seems that the appellant was advised by a friend after the adverse decision of the Tribunal to make representations to the Minister rather than seek judicial review, and it was only when the representations to the Minister failed that she sought to approach the Court.

4                     .  The notice of appeal cannot be accepted as such because the decision of his Honour was interlocutory and leave to appeal would be required.  I will treat the purported notice of appeal as an application for leave to appeal.  Leave must be refused because there is no prospect at all of success on the intended appeal.

5                     It is impossible to feel that there may not have been a degree of good faith in the applicant’s ultimate position because she is one of the few people I have struck who ever paid a filing fee in such a case.  The filing fee itself is over $1000.  It appears that she and her family, after six years in this country, will have to leave it involuntarily.  If the Registrar of the Federal Magistrates Court has the power to retroactively waive the filing fee, I recommend that consideration be given to doing so.

6                     After the hearing the respondent pointed out that I had omitted to consider costs.  The applicant should pay the Respondent’s costs assessed at $2,650.

Associate:

Dated:         6 June 2007