Applicant M1039 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 130

FEDERAL COURT OF AUSTRALIA

Applicant M1039 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 130 APPLICANT M1039 OF 2003 v MINISTER FOR IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS V 1168 OF 2003 BLACK CJ, SUNDBERG and HELY JJ 14 MAY 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1168 OF 2003

Application for leave to appeal from a decision of a Judge of the Federal Court

BETWEEN: APPLICANT M1039 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: BLACK CJ, SUNDBERG and HELY JJ

DATE OF ORDER: 14 MAY 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for an extension of time for leave to appeal be dismissed.

2. The application for leave to appeal be dismissed.

3. The applicant pay the respondent's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1168 OF 2003

Application for leave to appeal from a decision of a Judge of the Federal Court

BETWEEN: APPLICANT M1039 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: BLACK CJ, SUNDBERG and HELY JJ

DATE: 14 MAY 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant applied to the High Court for orders nisi in respect of a decision of the Refugee Review Tribunal affirming a decision of the respondent's delegate to refuse a protection visa. The proceeding was remitted to this Court, and was heard by Merkel J. The applicant appeared in person. His Honour put to him that he had already applied for review of the Tribunal's decision, and that had been dismissed by Ryan J: Vassiliev v Minister for Immigration & Multicultural Affairs [2001] FCA 424. The applicant agreed. His Honour said he was not able to rehear the matter. All he could do was to identify some new ground "and you don't seem to have one". The applicant agreed that he did not. Merkel J then said: "I am of the view that it is appropriate that the order number 1 of Marshall J of 20 October be vacated and that I order under order 51 rule 5 subrule (2) that … rule (1) not apply. In the result the matter comes before me as an application for an order nisi. In the present case the applicant has quite frankly indicated that the ground for his complaint is that he felt the tribunal had not properly understood his claim for persecution and had treated what he claimed to be persecution as mere inconvenience. This is a case where there was a challenge to the decision of the tribunal and grounds of the kind that the applicant has raised before me were considered by Ryan J, who refused the application for review in a decision of 10 April 2001. The applicant has quite frankly admitted before me that he does not have any other basis for complaint that he is able to articulate. It seems to me the proper way to proceed is to refuse the application for order nisi …, treating it as an interlocutory application."