Applicant S432 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1375

FEDERAL COURT OF AUSTRALIA

Applicant S432 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1375 APPLICANT S432 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1359 of 2004 WILCOX ACJ 13 OCTOBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1359 of 2004

BETWEEN: APPLICANT S432 of 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT JUDGE: WILCOX ACJ

DATE OF ORDER: 13 OCTOBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The objection to competency be upheld and the purported appeal be dismissed. 2. The applicant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs. 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 1359 of 2004

BETWEEN: APPLICANT S432 of 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX ACJ

DATE: 13 OCTOBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX ACJ: 1 On 17 September 2004, the applicant filed a notice of appeal against a decision of Allsop J given on 1 September 2004. The order made by Allsop J was an order to dismiss the applicant's application for an order nisi. That was an interlocutory order, so leave to appeal was necessary under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). No leave was granted. The solicitor for the respondent filed a notice of objection to competency on the ground that leave to appeal has not been granted. This objection is well taken. 2 In refusing an order nisi, Allsop J was strongly influenced by the fact that this proceeding is an attempt to re-litigate a previous unsuccessful challenge to the relevant decision of the Refugee Review Tribunal. He held, and I agree, that the Court should not countenance parties attempting to re-litigate matters already finally determined.