Applicant S1510 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 294

Applicant S1510 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 294

The primary judge correctly dismissed the s 39B application as incompetent because, applying s 476(2) of the Migration Act 1958 (Cth) and Ozmanian, the Court lacked jurisdiction to review the refusal of the Minister and the Department to consider the applicant's s 417 request. As the appellant identified no basis on which an appeal could succeed, leave to appeal or any extension of time to seek leave had no utility.

Jurisdiction
Australia
Judgment Date
24 March 2005
Procedural Posture
Appeal From the Federal Magistrates Court of Australia / Notice of Appeal and Application for Leave or Extension of Time
Outcome
Notice of appeal dismissed as incompetent; any application for an extension of time to seek leave to appeal dismissed; appellant/applicant ordered to pay the respondent's costs.
Legal Topics
['protection Visa' 'ministerial Intervention Under S 417 of the Migration Act 1958 (cth)' 'judicial Review Under S 39 B of the Judiciary Act 1903 (cth)' 'leave to Appeal' 'extension of Time']
['migration Law' 'administrative Law' 'federal Jurisdiction'] ['protection Visa' 'ministerial Intervention Under S 417 of the Migration Act 1958 (cth)' 'judicial Review Under S 39 B of the Judiciary Act 1903 (cth)' 'leave to Appeal' 'extension of Time']

Case Brief

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Procedural Posture

Appeal From the Federal Magistrates Court of Australia / Notice of Appeal and Application for Leave or Extension of Time

Legal Issues

  1. 1 ['Whether the Federal Court had jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to review a refusal of a request made to the Minister under s 417 of the Migration Act 1958 (Cth).' 'Whether there was any basis to grant leave to appeal or an extension of time to seek leave to appeal from the orders made on 11 November 2004.']

Ratio Decidendi

The primary judge correctly dismissed the s 39B application as incompetent because, applying s 476(2) of the Migration Act 1958 (Cth) and Ozmanian, the Court lacked jurisdiction to review the refusal of the Minister and the Department to consider the applicant's s 417 request. As the appellant identified no basis on which an appeal could succeed, leave to appeal or any extension of time to seek leave had no utility.

Court Disposition

Notice of appeal dismissed as incompetent; any application for an extension of time to seek leave to appeal dismissed; appellant/applicant ordered to pay the respondent's costs.

Orders

  • ['The notice of appeal be dismissed as incompetent.' 'To the extent that the notice of appeal can be treated as an application for leave to appeal the notice of appeal be so treated.' 'Any application for an extension of time for filing an application for leave to appeal from the orders of the Court on 11 November...