Aliluzzaman v Minister for Immigration Multicultural & Indigenous Affairs [2004] FCA 166 (10 February 2004)

Last Updated: 3 March 2004

FEDERAL COURT OF AUSTRALIA

Aliluzzaman v Minister for Immigration Multicultural & Indigenous Affairs
[2004] FCA 166

ADIL ABM ALILUZZAMAN v MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

N 73 of 2004


















WHITLAM J
10 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 73 OF 2004

BETWEEN:	ADIL ABM ALILUZZAMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	10 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time to file and serve a notice of appeal is dismissed.
2. The applicant is to pay the respondent’s costs.

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	N 73 OF 2004

BETWEEN:	ADIL ABM ALILUZZAMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	10 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This proceeding was commenced by an application filed on 22 January 2004. The application was one for leave under O 52 r 15(2) of the Federal Court Rules to file and serve a notice of appeal. The application did not indicate the date on which it would be heard, no such hearing date having been obtained in the registry. Accordingly, the matter was referred to me as Duty Judge this week for disposition, and on 29 January 2004 my associate wrote to the applicant at his address of record indicating that the application would be heard today.

2 Upon the matter being called on for hearing today, the respondent appeared but there was no appearance by or on behalf of the applicant. The respondent asks, therefore, that the application be dismissed. It is appropriate that I accede to that application. I do so in no perfunctory manner because the applicant is not here and for the assistance of any judge who has to deal with an application to set aside the order I am about to pronounce, I will say something more about this matter.

3 The proposed appeal related to a judgment of the Federal Magistrates Court given on 10 December 2003 refusing to set aside an order made on 20 November 2003, in the absence of the applicant, by which that Court dismissed his application under s 39B of the Judiciary Act 1903 (Cth) seeking to have a decision of the Migration Review Tribunal (‘the Tribunal’) set aside. The judgment of the Federal Magistrates Court given on 10 December 2003 is an interlocutory judgment and under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) leave is required to appeal from that judgment.

4 The affidavit filed in support of the present application and the draft notice of appeal addressed only the question why a notice of appeal was not filed within 21 days after 10 December 2003. Nothing was said by the applicant in that affidavit to cast the slightest doubt on the reasons given by Raphael FM for his decision on 10 December 2003, nor do I detect any possible error in those reasons. Of course, the practical effect of the judgment was finally to dispose of the attempt to set aside the decision of the Tribunal. However, it cannot be suggested that there would have ever have been any case to enlarge the time to appeal against the order made on 20 November 2003. Such an extension of time is only granted for the purposes of doing justice between the parties, and no such purpose could possibly have existed in this case.

5 The papers in the Green Book at first instance show that the applicant attempted, with the connivance of a registered migration agent, to postpone the hearing before the Migration Review Tribunal by advancing a false excuse. The reasons of the Tribunal show how utterly hopeless his application for review was and that the proceeding he instituted in the Federal Magistrates Court was never remotely arguable. This case is an example of the disgraceful way in which the courts are being used to delay the disposition of matters which have no merit whatsoever.

6 As the applicant was absent when the application was called on for hearing, it will be dismissed. My further comments may be of assistance to any judge who has to deal with an application to set aside my order. The applicant is to pay the respondent’s costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated: 3 March 2004

The applicant did not appear

Solicitor for the Respondent:	Mr B Cramer of Blake Dawson Waldron
Date of Hearing:	10 February 2004
Date of Judgment:	10 February 2004