Applicant S132/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 162 (28 February 2005)

Last Updated: 2 March 2005

FEDERAL COURT OF AUSTRALIA

Applicant S132/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 162

APPLICANT S132/2004 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1718 of 2004

JACOBSON J
28 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1718 OF 2004

BETWEEN:	APPLICANT S132/2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	28 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The application for an extension of time to file and serve an application for leave to appeal is refused.
2.	The applicant is to pay the 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	N 1718 OF 2004

BETWEEN:	APPLICANT S132/2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	28 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file an application for leave to appeal against a judgment of Madgwick J dated 2 November 2004. On that date, his Honour ordered that the application, which was an application for an order nisi, be dismissed, and his Honour ordered the applicant to pay the respondent's costs in a fixed sum.

2. When the matter was called on for hearing at 10.15 am, there was no appearance by either the applicant or the respondent. I stood the matter down for half an hour, and the Minister is now represented before me. The Minister's solicitor asks me to dismiss the application for want of an appearance by the applicant.

3. The applicant notified the court by a facsimile sent on Sunday 27 February 2005 that he would not be attending the hearing this morning. He said in the facsimile that he has been suffering illness since last Wednesday and that he is trying to attend the hearing, which is listed at 10.15 am today. He said that he still has the illness and that he is unable to attend the hearing, and he apologises for this.

4. Since the facsimile was only received this morning, my associate telephoned the applicant. Before my associate spoke to the applicant, I was shown the facsimile and accompanying medical certificate from the applicant, but I took the view that it was inappropriate to vacate the hearing. However, I reached the view that the applicant could make whatever submissions he wished at this morning's hearing. My associate informed the applicant of this. However, he said that the matter was "in the Judge's hands", and that he would not be attending court this morning.

5. It is plain from the facsimile to which I have referred that the applicant was aware of today's hearing. Ms Burnett, who appears for the Minister, asks me to dismiss the application. It seems to me that I have power to do so. The power is found in either section 25(2)(B)(bb)(ii) of the Federal Court Act 1976 (Cth), or order 35A rule 2(1)(f) and rule 3(1)(a) of the Federal Court Rules.

6. It has been necessary to refer to these rules because order 52 rule 38A does not apply, the power conferred by that rule being limited to the case where a party is absent when an appeal is called on for hearing. Also, order 32 rule 2 does not apply because that rule is only applicable when a proceeding is called on for trial. The definition of trial excludes interlocutory hearings.

7. I dealt with a similar application in SZDJA v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1499. The power to make the order is, as I have said, found in the section and the rules to which I have referred. I note that a similar approach has been taken by other judges of this court. See for example SZATD v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1559 per Whitlam J.

8. Accordingly, the order I make is that the application be dismissed. I do so because of the want of appearance of the applicant this morning, but I should add that it is clear from the material before Madgwick J, that there was nothing of a kind which would have enabled his Honour to conclude that the outcome of the RRTs decision would have been different. There was no arguable case, nor had the applicant provided material of a kind which would have enabled the court to grant an order nisi.

9. The matter was summed up in [9] of Madgwick Js judgment; see [2004] FCA 1708, which I set out in full as follows:

"In my opinion, no arguable case of jurisdictional error is shown by the Tribunal. Moreover, in view of the long and unsatisfactory delays, I think that no arguable case for the Court exercising its discretion in relation to matters so old has been shown. Finally, considerations of Anshun estoppel would dictate beyond the possibility of any reasonable argument the denial of any relief now to the applicant. It follows that the application for an order nisi should be dismissed."

10. Accordingly, as I said, I will order that the application be dismissed.

11. I order the applicant to pay the respondent's costs of the application.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated: 2 March 2005

Counsel for the Applicant:	No appearance for the applicant
Counsel for the Respondent:	Ms Burnett
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	28 February 2005
Date of Judgment:	28 February 2005