Applicant S1548/03 v Minister for Immigration and Citizenship [2007] FCA 755

FEDERAL COURT OF AUSTRALIA

Applicant S1548/03 v Minister for Immigration and Citizenship [2007] FCA 755 APPLICANT S1548/03 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 264OF 2007

RYAN J

17 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 264 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: APPLICANT S1548/03

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J DATE OF ORDER: 17 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be refused. 2. The applicant pay the first 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

NEW SOUTH WALES DISTRICT REGISTRY NSD 264 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: APPLICANT S1548/03

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE: 17 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 There is before the Court an application for leave to appeal from orders of the Federal Magistrates Court made on 8 February 2007. On that day, Cameron FM dismissed as incompetent an application by the appellant seeking a review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 5 January 1998. That decision affirmed an earlier decision on 15 April 1997 of a delegate of the respondent Minister for Immigration and Citizenship as the office is now known ("the Minister"), to refuse the applicant a protection visa. 2 The affidavit in support of the application for leave to appeal recites; 'The ground for appeal is same as stated in my Federal Magistrate application dated 22 November 2006 and a copy is annexed. I was not given a new decision.' 3 In the course of his reasons the learned Federal Magistrate noted that the applicant had sought an extension of time pursuant to s 477 of the Migration Act 1958 (Cth) ("the Act"), in which to apply for review of the Tribunal's decision of 5 January 1998. His Honour also noted that the same applicant had earlier applied to Nicholls FM at a hearing on 5 September 2005 for a review of the same decision of the Tribunal, i.e. the decision of 5 January 1998. 4 Cameron FM then referred to the terms of s 477 of the Act which provides; '(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision. (2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if: (a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and (b) the Federal Magistrates Court is satisfied that it is in the interests of administration of justice to do so. (3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period. (4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.' 5 His Honour next observed, at [8] of his reasons; 'The extension of time provision permits an extension of time of 56 days in addition to the 28 days allowed under sub-s.(1) if an application for such an extension is made within 84 days of the actual, as opposed to deemed, notification of the decision. The question therefore is, when was the decision notified to the applicant.' 6 After referring to the transitional provisions contained in the Migration Litigation Reform Act 2004 ("the Reform Act"), the learned Federal Magistrate noted that the commencement day stipulated in item 42 of Sch 1 to the Reform Act was 1 December 2005, on which date the decision of the Tribunal was taken to have been actually notified to the applicant. 7 Accordingly, his Honour concluded that the applicant had 84 days from 1 December 2005 in which to seek an extension of time. As her proceedings were not instituted until 22 November 2006, and so well outside the 84 day period, his Honour dismissed the application as incompetent. That order of dismissal of the Federal Magistrates Court was an interlocutory order, although it brought the particular proceedings to an end. 8 The principles governing a grant of leave to appeal from an interlocutory order have been succinctly set out by a Full Court of this Court in Décor Corporation Proprietary Limited v Dart Industries Incorporated (1991) 33 FCR 397 where their Honours observed, at 398; 'The first test, which relates to the prospects of the proposed appeal, is "whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court". The second "is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.' 9 I consider that the present applicant has manifestly failed to satisfy the first test postulated by the Full Court. On a proper analysis of s 477 of the Act and the transitional provisions of the Reform Act, no other conclusion is open other than that the applicant is irretrievably precluded from now seeking judicial review of the Tribunal's decision of 5 January 1998. Moreover, no substantial injustice will result from the refusal of leave to appeal because the applicant has previously obtained judicial review of the Tribunal's decision of 5 January 1998. That occurred on 7 September 2005 when Nicholls FM made orders dismissing her application in Applicant S1548 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 1281. The reasons for those orders concluded with this paragraph: '9. The Tribunal clearly had some sympathy for the applicant and her claims. It acknowledged that she had a subjective fear of harm, but that the harm that had occurred in the past was not for a Convention related reason, and that the fear of harm in the future arising out of the applicant being a member of the Chinese community in Indonesia, which was caught up in intermittent incidents of community violence, was not such as to constitute systematic conduct against the Chinese community. But in any event, the Tribunal independently of these findings, found that in relation to this fear of harm as a result of any conduct against the Chinese community, that the Indonesian government provided an adequate level of protection. All these findings were open to the Tribunal on the material before it and I can see no error, let alone jurisdictional error, in what the Tribunal has done. Accordingly this application is dismissed.' 10 The applicant, in her written submissions filed on 12 April 2007, has not attempted to overcome the obstacles to a grant of leave to appeal which I have identified as insurmountable. Instead, she has merely sought to agitate again the merits of her case before the Tribunal. Those written submissions were in these terms: 'The fact I had given are facts while I was in my country until the day I arrived Australia on 21 December 1996. I realised I was so lucky to be here, Australia, since then, because later happened the horrible event 'May 1998'. Ethnic Chinese like me, were extremely targeted and happened at all key cities simultaneous throughout the country (Indonesia).