Applicant S1970 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

Applicant S1970 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs - [2004] FCA 582 - FCA 2004 case summary — Zoe

REASONS FOR JUDGMENT 1 This is one of eight motions under O 52 r 10(2)(b) for an extension of time to file an application for leave to appeal against the judgment of Emmett J, given on 20 February 2004, refusing the grant of an order nisi. The notice of motion was filed on 15 March 2004. No explanation for the delay seems to have been given. 2 The relevant background to the proceedings and the reasons why his Honour refused to make an order nisi are referred to in my judgment in the matter of Applicant S1198 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 577. 3 When the matter was called on for hearing this morning, the applicant did not appear. Mr Harris SC for the Minister asked me to deal with the matter pursuant O52 r38A(1)(d) and I propose to do so. The same power arises under O32 r2. 4 The applicant filed an affidavit in support of the application for an extension of time. The affidavit states that the applicant does not know the reason for the dismissal of his proceedings and believes that his Honour made an error in supporting the Refugee Review Tribunal's assessment of the claim. 5 There is nothing in the affidavit to satisfy me that there was any doubt whatsoever about the correctness of his Honour's judgment. I am satisfied that an extension of time would be futile because the application for leave to appeal has no prospects of success. 6 The applicant in the notice of motion sought leave to prosecute the application before a Full Court. 7 Even if this were an application for leave to appeal rather than an extension of time it would be a matter for me to decide whether it was appropriate to refer the matter to a Full Court; see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 554 (Von Doussa, Moore, Sackville JJ). This would not be an application which I would have referred to a Full Court. 8 Accordingly the orders that I make are that the motion for an extension of time be dismissed. I order the applicant to pay the respondent's costs in the motion as taxed or assessed or as agreed between the parties. I certify that the preceding eight (8) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

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