SRYYY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 171 (27 February 2004)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 57 OF 2004

BETWEEN:	SRYYY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	27 FEBRUARY 2004
WHERE MADE:	SYDNEY

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 57 OF 2004

BETWEEN:	SRYYY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	27 FEBRUARY 2004
PLACE:	SYDNEY

1 On 19 December 2003 Lindgren J dismissed as incompetent an appeal by the applicant under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) from a decision of the Administrative Appeals Tribunal (‘the AAT’) which in turn affirmed a decision of the Minister’s delegate not to grant the applicant a protection visa. Section 483 of the Migration Act 1958 (Cth) (‘the Act’) provides that section 44 of the AAT Act does not apply to a privative clause decision.

2 Lindgren J correctly observed that the AAT’s decision would be a privative clause decision unless it was no decision at all for the reason that it involved jurisdictional error. His Honour found that no jurisdictional error had been demonstrated and he rejected as spurious the applicant’s submission that s 483 was inconsistent with the Constitution.

3 The upholding of an objection to competency is ordinarily regarded as a decision which is interlocutory in character but, if that is so, in the present context it is only interlocutory in the most attenuated sense. This is so because Lindgren J had to determine the merits of the case before he could come to the conclusion that the AAT’s decision was a privative clause decision. If the decision was regarded as being final in character, then taking into account the provisions of Order 3 rule 2 of the Federal Court Rules, the appeal period would have expired on about 21 January 2004. Of course, if it was an interlocutory decision the appeal period was seven days.

4 On 19 January 2004 the applicant filed an application for an extension of time for leave to appeal upon the assumption that the appeal period had expired. The applicant says, and I accept, that he did not receive a copy of Lindgren J’s reasons for decision until 9 January 2004. The matter came before Lindgren J on 6 February 2004 and his Honour ordered that a draft notice of appeal be filed as well as a notice of motion seeking leave to appeal. In fact, the document which the applicant filed on 17 February 2004 was a notice of motion seeking an extension of time to file and serve an appeal, but Mr Markus, who appears for the Minister, has agreed that that application should be treated as extending to an application for leave to appeal.

5 In the motion the appellant has requested that this matter be dealt with by a Full Court. As I understand the authorities, it is a matter for me to decide whether I should entertain the application or whether it should be referred to a Full Court. In the particular and peculiar circumstances of the present case I think that it is appropriate to refer the application to a Full Court for decision, particularly since if I were to determine the matter myself I might wish to revisit the issue as to whether this judgment was in truth interlocutory in character.

6 I think that consideration of fairness to the applicant requires that I should accede to his request to refer the matter to a Full Court. I do so, and I direct that the matter be returned to the registry so that the administrative arrangements necessary to give effect to that conclusion can be put in place.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

	The applicant appeared in person

Counsel for the Respondent:	Mr A Markus

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	27 February 2004

Date of Judgment:	27 February 2004

Federal Court of Australia

SRYYY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 171 (27 February 2004)