S364 of 2003 v Minister for Immigration & Multicultural& Indigenous Affairs [2006] FCA 183 (13 February 2006)

S364 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 183

S364 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS

NSD 2352 of 2005

GRAHAM J

13 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2352 OF 2005

BETWEEN:	S364 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT R MATHLIN MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	GRAHAM J
DATE OF ORDER:	13 FEBRUARY 2006
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	NSD 2352 OF 2005

BETWEEN:	S364 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT R MATHLIN MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGE:	GRAHAM J
DATE:	13 FEBRUARY 2006
PLACE:	SYDNEY

1 This is an application for leave to appeal filed on 29 November 2005. The application is brought pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and Order 52 rule 10(2A)(b) of the Federal Court Rules. The application is itself out of time, although there is power under the rule to which I have just referred for the Court to extend that time if it considers it appropriate to do so.

2 The Applicant is a Fijian of Indian ethnicity. She arrived in Australia, so she tells me, in 1991 when a teenager. She applied for a Protection Visa and on 26 March 1992 the Minister's delegate declined that application.

3 She sought review of the Minister's delegate's decision before the Refugee Review Tribunal (‘the Tribunal’) and on 18 February 1994 both she and her sister gave evidence before the Tribunal. On 5 May 1994 so it would seem the Tribunal reached its decision and handed it down, that decision being to affirm the decision of the Minister's delegate not to grant the Applicant a visa. Some nine years later the Applicant sought the issue of an order nisi for constitutional writ relief in the High Court of Australia upon a series of grounds. That application was remitted by the High Court to this Court for consideration.

4 On 9 November 2005 Emmett J considered the application for the order nisi and ordered that it be refused. In relation to that decision the present application for leave to appeal is brought. The Applicant relies upon an affidavit affirmed by her on 29 November 2005 in support of her application for leave to appeal. The Applicant would appear to have become married to a citizen of Bangladesh. Her application for the grant of an order nisi was supported by a submission which referred to a fear of harm at the hands of the Awami League were she to be, in effect, returned to Bangladesh. Emmett J rightly pointed out, of course, that the Applicant is a national of Fiji.

5 The draft order nisi for constitutional writ relief referred to seven grounds, the first three of which related to the decision of the Tribunal and the latter four related to the decision of the Minister's delegate. Suffice it to say that the only relevant grounds were the ones attacking the decision of the Tribunal. As Emmett J pointed out in his reasons for judgment, those grounds were not supported by any evidence upon which findings could be made in favour of the Applicant.

6 The draft notice of appeal from the decision of Emmett J raises totally different grounds from those that were argued or referred to in the draft order nisi. None of the grounds in the draft notice of appeal raise issues which were canvassed in the draft order nisi. Amongst other things they challenge the constitutional validity of s 424A of the Migration Act 1958 (Cth). As Mr Markus, solicitor from the Australian Government Solicitor's office, rightly points out that section was not even enacted until four years after the Tribunal handed down its decision.

7 For a grant of leave to appeal to be made it is necessary for the Applicant to establish that the decision of Emmett J was attended with sufficient doubt to warrant its reconsideration and that substantial injustice would result if leave to appeal were refused. It seems to me, as Mr Markus submitted, that any appeal would be futile. In the circumstances no relevant injustice would flow from a refusal of leave to appeal. The time within which the present motion should have been filed was within seven days after the date on which Emmett J’s judgment was pronounced.

8 The Minister has indicated that she does not oppose an extension of time. Whilst a formal extension of time has not been sought it seems to me, given the fact that the Applicant was not present at a hearing before Emmett J, it would not be unreasonable to grant a formal extension of time for the application to be brought.

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

Counsel for the Applicant:	The Applicant appeared in person.

Solicitor for the Respondent:	A Marcus of the Australian Government Solicitor

Date of Hearing:	13 February 2006

Date of Judgment:	13 February 2006