M154 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 423

FEDERAL COURT OF AUSTRALIA

M154 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 423 M154 of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID583 of 2004 RYAN J 15 APRIL 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID583 of 2004

On appeal from the Federal Magistrates Court

BETWEEN: M154 of 2002

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 15 APRIL 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs, including any reserved costs, such costs to be taxed in default of agreement. 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 VID583 of 2004

On appeal from the Federal Magistrates Court

BETWEEN: M154 of 2002

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 15 APRIL 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an appeal from orders of Phipps FM on 30 April 2004 dismissing the appellant's application for prerogative relief against the Refugee Review Tribunal ("the Tribunal"). On 17 March 2005, I decided that Phipps FM had made a final order dismissing the application and not an interlocutory order refusing to grant the appellant an order nisi. Accordingly, I held that the appellant had an appeal as of right from the orders of the learned Federal Magistrate. In the reasons published on 17 March 2006 ([2005] FCA 255), I incorporated by reference reasons which I published on the same day in M153 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 251. Reference should be made to both sets of earlier reasons as if the relevant parts were fully set out in the present reasons. 2 Towards the end of the earlier reasons I indicated, at [3]; '3 … … The draft notice of appeal apparently filed in support of his misconceived application for leave to appeal is neither elegant nor informative and, if the appellant wishes to rely on an amended notice, he should file and serve such a document by 1 April 2005. For the reasons which I explained in M153/2002, to have any prospect of success on the substantive appeal, the appellant will have to overcome the obstacle presented by the fact that his application for review of the decision of the Refugee Review Tribunal was rejected by Heerey J and that rejection was affirmed by a Full Court of this Court after a hearing at which the appellant was represented by Senior Counsel. 4 As I did in M153/2002, I shall adjourn the hearing of the appeal to 11 April 2005 when I shall receive submissions from the parties on the question which I have just identified and generally as to the disposition of the appeal from the Federal Magistrates Court. …' 3 Despite that invitation, the appellant has not filed an amended notice of appeal or any further affidavits in support of the appeal. Such material as he has filed has apparently been derived from standard form documents prepared by the Asylum Seekers Resource Centre. Although the misconceived application for leave to appeal recited that "The grounds of the application appear in the annexed affidavit", no affidavit by or on behalf of the appellant has been filed. I infer from what the appellant said when he appeared in person with the help of an interpreter on 11 April 2005 that the Resource Centre had the same inability to provide assistance on the hearing of the appeal as it had in respect of the appellant in M153.