Applicants S69 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 116 (7 February 2005)

Applicants S69 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 116

APPLICANTS S69 OF 2004 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1717 OF 2004

HELY J
7 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1717 OF 2004

BETWEEN:	APPLICANTS S69 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	7 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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	NSD 1717 OF 2004

BETWEEN:	APPLICANTS S69 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	7 FEBRUARY 2005
PLACE:	SYDNEY

1 The applicant is a citizen of India who arrived in Australia with his wife and child on 15 March 1999. His application for a protection visa was unsuccessful and on 23 July 2002 the Refugee Review Tribunal (‘the RRT’) handed down its decision affirming the decision of the Minister’s delegate not to grant a protection visa to the applicant.

2 The applicant made an application for judicial review of that decision which was dismissed by Sackville J on 4 October 2003. On 11 March 2003 the Full Court of the Federal Court dismissed an appeal from that decision. On 13 February 2004 the High Court of Australia refused special leave to appeal from that decision on the grounds that no error was shown in the decision of the RRT and an appeal from the decision of the Full Federal Court would have no prospect of success.

3 On 8 March 2004 an application for an order nisi was lodged in the High Court of Australia for the issue of constitutional writs which was remitted to the Federal Court of Australia on 13 April 2004. The application was dismissed by Bennett J on 27 October 2004. There may be room for argument as to whether her Honour’s decision was interlocutory or final in character. If it be assumed that the decision was final in character, an appeal was required to be lodged by 17 November 2004.

4 On 22 November 2004 the applicant lodged an application for an extension of time to file and serve a notice of appeal. The only evidence proffered in support of the application was that the applicant was unrepresented and that he was a genuine refugee who was dissatisfied with the orders made by Bennett J.

5 If I were satisfied that the applicant had an arguable case on appeal I would have been inclined to extend the time within which he could appeal given his lack of familiarity with the legal system and the fact that his native language is Bengali. However, the draft notice of appeal does not establish that the appellant has a viable basis for an appeal. It is of a template nature unconnected with the particular circumstances of the applicant’s case.

6 The applicant lodged a written argument in support of his application which I will not summarise but I have had it placed on the court file. That written argument does not disclose that the applicant has a realistic prospect of success on appeal. It seeks to assert error on the part of the RRT, a case which has been rejected by Sackville J, by the Full Federal Court and by the High Court, and it impermissibly seeks to invite the Court to engage in a merits review. Neither the draft notice of appeal nor the applicant’s written argument nor anything which has been put to me by the applicant this afternoon discloses that he has sufficient prospects of success on appeal to warrant the grant of an extension of time.

7 I should add that when the matter came on for hearing the applicant sought an adjournment for a period of two weeks in order to enable him to place the transcript of the RRT proceedings before me. I refused that application. During the course of his oral submissions the applicant repeated the application. I again refused it. I did so because in my view he has had more than adequate opportunity of putting that transcript before the Court if he wished to do so and he told me that his purpose in seeking to get the transcript was to show that the RRT never told him that what he was saying was not right. Even if that be so, it would not of itself amount to a jurisdictional error on behalf of the RRT.

8 In my view, the decision of Bennett J was manifestly correct and the application for an extension of time should be refused for that reason. The application is dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

	The applicant appeared in person

Solicitor for the Respondent:	Blake Dawson Waldron

Date of Hearing:	7 February 2005

Date of Judgment:	7 February 2005