FEDERAL COURT OF AUSTRALIA S1279/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1088 S1279/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1281 OF 2005 GRAHAM J 8 AUGUST 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD1281 OF 2005 BETWEEN: S1279/2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GRAHAM J DATE OF ORDER: 9 AUGUST 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application filed 29 July 2005 be dismissed. 2. The Applicant pay the Respondent's costs fixed in the sum of $600. 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 NSD1281 OF 2005 BETWEEN: S1279/2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GRAHAM J DATE: 8 AUGUST 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 What is presently before the Court is an application by an Applicant identified as S1279/2003 for leave to appeal from a judgment of Justice Emmett handed down on 20 February 2004 in Applicant S 1174 of 2002 v Refugee Review Tribunal [2004] FCA 289. In that case there were 708 matters in total before the court, all of which had been remitted to the Federal Court by Justice Gaudron in the High Court on 25 November 2002. 2 In each of the matters before Justice Emmett, orders nisi were sought for relief in respect of decisions of the Refugee Review Tribunal ("RRT"). In each matter, reliance was placed on the decisions of the High Court in Muin v Refugee Review Tribunal & Ors; Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601 ("Muin and Lie"). In Muin and Lie, there had been agreed facts before the High Court which permitted it to reach the conclusions which it did, namely that certain letters written by the RRT to the Plaintiffs in those cases were capable of misleading a reasonable person. 3 The present Applicant's matter before Justice Emmett was identified as matter number NSD 1343/2003. His Honour refused an order nisi as sought by the Applicant as well as the other Applicants. In his reasons for judgment Justice Emmett said [20]: "To obtain an order nisi an applicant must show that he or she has at least an arguable case that the Tribunal, whose proceedings are called into question, has erred in a manner that would justify final relief by way of an order absolute." 4 At [22] his Honour said: "It is patent that the material filed in this proceeding and each of the other similar proceedings does not demonstrate an arguable case for the grant of any relief." 5 In each matter before his Honour, relief was sought in the form of discovery from the Minister. Such relief was not granted. His Honour said [31]: "[T]he question is whether there is any utility in allowing the proceeding to continue further, in circumstances where the applicant effectively acknowledges that he cannot succeed unless the Minister is directed to provide documents to which the applicant has no entitlement." 6 His Honour then said at [35]: "At the moment, I am not persuaded that there is any good reason why I should, at this stage of the proceeding, compel the Minister to furnish the documents sought in order for the applicant to tell the court and the Minister what his case is." 7 Under Order 52 rule (10)(2)(b) an application for leave to appeal from an interlocutory judgment of the Court must be filed and served within seven days from the pronouncement of the interlocutory judgment from which leave to appeal is sought, or within such further time as the Court or a Judge may allow. 8 It is clear that the decision of Justice Emmett, refusing an order nisi, was an interlocutory judgment (see [28] of his Honour's reasons). The present application was filed on 29 July 2005, some 17 months after the seven day time limit expired. Before me, the Applicant has explained his delay in seeking an extension of time by saying: "The time frame expired so many months ago. I do not know how this is. I apply to the Federal Magistrate's Court firstly, and keep applying to the Court." 9 For the Applicant to be able to bring this application for leave to appeal, he must first secure an extension of time within which to do so. Were the time to be extended, he would need to satisfy the Court that in all the circumstances the decision of Justice Emmett, was attended by sufficient doubt to warrant it being reconsidered by a Full Court and further, that substantial injustice would result if leave were refused supposing the decision to be wrong. 10 In the affidavit of the Applicant, sworn 29 July 2005, he says: "The delegate of the Minister for Immigration and Multicultural Affairs refused to grant my protection visa. I applied for review with the Refugee Review Tribunal, Sydney. The refugee Review Tribunal affirms the delegate's decision. I lodged application for judicial review under the Judiciary Act 1903. I am not satisfied with the Federal decision of my appeal. The honourable Federal (sic) did not consider my genuine grounds." 11 The draft notice of appeal of 19 July 2005 submitted with the application for leave to appeal alleges that Justice Emmett failed to find: "[E]rror of law, Jurisdictional error, Procedural fairness, and relief under Section 39B of the Judiciary Act 1903." 12 Reference was also made to Muin and Lie, Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, and SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74. In his written submissions of 8 August 2005, the applicant has said, amongst other things: "I did not prepare the transcript of my RRT hearing because of my financial hardship … I believe that the decision of the Tribunal was otherwise than a bona fide attempt to exercise its power … the Refugee Review Tribunal and FCA did not follow the proper procedure as required by the Migration Act 1958; the RRTs decision was affected by an "error of law" and "jurisdictional error" and there was no evidence or related materials to justify the decision. The RRT invited me to give oral evidence and advised us about its decision by issuing a letter." 13 The written submissions annexed a copy of the letter of the RRT to the Applicant of 6 April 2000, a copy of the High Court's judgment in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, a copy of Justice Madgwick's judgment in SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931 and a copy of the High Court's judgment in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. 14 It is important to note that the Applicant has attempted to challenge the decision of the RRT directly or indirectly on numerous occasions. On 13 October 2000 Justice O'Loughlin dismissed an application for review of the RRT's decision, in proceedings NSD 593/2000. An appeal from Justice O'Loughlin's decision was dismissed by the Full Court on 6 February 2001. 15 Since the decision of Justice Emmett of 20 February 2004 the Applicant has again sought review of RRT's decision in proceedings before the Federal Magistrate's Court. Those proceedings were the subject of an objection to competency. On 1 November 2004 Federal Magistrate Driver found the application to be incompetent and proceeded to dismiss it. 16 The Applicant sought leave to appeal from the decision of Federal Magistrate Driver and on 15 December 2004 Justice Gyles dismissed that application with costs. It is in the foregoing context that the Applicant now seeks leave to appeal against the decision of Justice Emmett of 20 February 2004. 17 In my opinion the application presently before the Court is without foundation. It would be entirely inappropriate to grant an extension of time within which an application for leave to appeal may be brought in circumstances where the delay in lodging the application is to all intents and purposes unexplained. Furthermore, no material has been placed before the Court which would suggest in any way that the decision of Justice Emmett was attended by sufficient doubt to warrant it being reconsidered by a Full Court. 18 In the foregoing circumstances I order that the application filed 29 July 2005 be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 23August 2005 The Applicant: Appeared in person Solicitor for the Respondent: Ms K L Alexander Date of Hearing: 8 August 2005 Date of Judgment: 8 August 2005