Applicant M261/2003 v MIMIA [2005] HCATrans 499 (5 August 2005)

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Applicant M261/2003 v MIMIA [2005] HCATrans 499 (5 August 2005)

Last Updated: 24 August 2005

[2005] HCATrans 499

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M152 of 2004

B e t w e e n -

APPLICANT M261/2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 8.46 AM

Copyright in the High Court of Australia

McHUGH J: This is an application for special leave to appeal against the decision of Sundberg J of the Federal Court, given on 30 July 2004. His Honour dismissed an appeal against a decision of Merkel J, dismissing an application for an order nisi. That application had been remitted to the Federal Court by a Justice of this Court on 30 January 2004. That was the third application for an order nisi that the applicant had filed in this Court.

We agree with the respondent’s submission that the application is incompetent by reason of s 33 of the Federal Court of Australia Act 1976 (Cth), which provides that no appeal shall be brought to this Court from a judgment of a single Justice of the Federal Court unless that Judge is exercising the appellate jurisdiction of the Court in relation to an appeal from a judgment of the Federal Magistrates Court. As the applicant seeks special leave to appeal from the decision of Sundberg J, this matter falls within the prohibition of s 33.

Moreover, the substance of the applicant’s arguments make clear that the application raises no question of law, but rather challenges the factual conclusions of the Tribunal. Even if the application were competent, an appeal would have no prospects of success because there is nothing to suggest any error of law in the Tribunal’s reasons. Accordingly, the application for special leave must be dismissed with costs.

The application for special leave is dismissed with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order that the application is dismissed with costs. I publish our joint reasons.

AT 8.47 AM THE MATTER WAS CONCLUDED