FEDERAL COURT OF AUSTRALIA NADU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 158 PRACTICE & PROCEDURE – application for review of decision of Minister declining exercise of power under s 417 of the Migration Act 1958 (Cth) – application dismissed as incompetent – notice of appeal – notice of objection to competency – notice of appeal treated as an application for an extension of time in which to seek leave to appeal – application dismissed Migration Act 1958 (Cth) s 417, s 476 Bedlington v Chong (1998) 87 FCR 75 referred to Fifita v Minister for Immigration & Multicultural Affairs [2001] FCA 1695 referred to NADU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N8 OF 2003 EMMETT J 3 MARCH 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N8 OF 2003 BETWEEN: NADU APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 3 MARCH 2003 WHERE MADE: SYDNEY THE COURT: 1. directs that the notice of appeal filed on 6 January 2003 be treated as an application for an extension of time in which to seek leave to appeal from the orders of Branson J given on 19 December 2002; 2. orders that the application be dismissed; 3. orders that the Applicant pay the Respondent's 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 N8 OF 2003 BETWEEN: NADU APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE: 3 MARCH 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The Applicant is a citizen of India who arrived in Australia on 14 December 1998. He applied for a protection visa on 8 September 2000. On 9 October 2000, a delegate of the Respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refused the application for a protection visa. The Applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision on 1 November 2000. The Applicant did not appear before the Tribunal to give evidence at a hearing which was conducted on 18 March 2002 despite being informed that the Tribunal was unable to make a favourable decision on the papers. The Tribunal affirmed the delegate's decision on 23 April 2002. 2 On 18 October 2002, the Applicant requested the Minister to exercise his power under s 417 of the Migration Act 1958 (Cth) ("the Act")to substitute a more favourable decision for that of the Tribunal. The Minister wrote to the Applicant on 5 November 2002 declining to consider the exercise of his power. The Applicant then sought review of that decision by the Minister in this Court. 3 On 4 December 2002, the Minister filed a notice of objection to competency of that application. The notice of objection to competency was listed for hearing before Branson J on 19 December 2002. The application was dismissed as incompetent on 19 December 2002 for reasons published on 8 January 2003. Her Honour concluded that s 476(2) of the Act deprived this Court of jurisdiction to hear and determine a challenge to the Minister's refusal to consider the exercise of his powers under s 417. 4 On 6 January 2003, the Applicant filed in this Court a notice of appeal from the orders made by her Honour. On 13 February 2003, the Minister filed a notice of objection as to competency of the appeal. The orders of her Honour are interlocutory: see Fifita v Minister for Immigration & Multicultural Affairs [2001] FCA 1695 at [3]-[8]. Accordingly, the appeal is incompetent in the absence of the grant of leave to appeal. No application for leave has been sought. 5 The Applicant appeared in person on the hearing of the Minister's application for dismissal for incompetency. No submissions were advanced in support of the position of the Applicant other than that he wanted his case heard by three judges. Section 417(7) of the Act makes it clear that s 417(1) creates only a power and no duty so far as the Minister is concerned: see Bedlington v Chong (1998) 87 FCR 75. 6 It would follow that, even if leave were granted to appeal from the orders of her Honour, the appeal would be doomed to failure and has no prospects of success. In the circumstances it does not appear to me to be appropriate to allow the matter to proceed further. Accordingly, I propose to treat the notice of appeal as an application for an extension of time within which to seek leave to appeal. I will dismiss that application. That should dispose of the proceeding. 7 The Minister asks for the costs of the proceeding to date. The Applicant contends that, since he has not had a hearing before the Full Court, he should not have to bear any costs. That does not appear to me to be a basis for departing from the usual rule. I propose to order the Applicant to pay the Minister's costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 6 March 2003 Solicitor for the Applicant: The Applicant appeared in person with the assistance of an interpreter Counsel for the Respondent: T Reilly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 3 March 2003 Date of Judgment: 3 March 2003