SZJXS v Minister for Immigration and Citizenship [2008] FCA 409 (29 February 2008)

SZJXS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2222 OF 2007

GRAHAM J
29 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2222 OF 2007

BETWEEN:	SZJXS Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	29 FEBRUARY 2008
WHERE MADE:	SYDNEY

1. Grants leave to the respondent Minister to file in court an affidavit of Alison Lena Faron affirmed 29 February 2008.

2. Orders that the Application filed 12 November 2007 be dismissed as to the whole of the relief claimed by the applicant.

3. Grants leave to the respondent Minister to file in court an affidavit of Zoe McDonald affirmed 28 February 2008.

4. Orders that the applicant pay the respondent Minister’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	NSD 2222 OF 2007

BETWEEN:	SZJXS Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GRAHAM J
DATE:	29 FEBRUARY 2008
PLACE:	SYDNEY

1 This is an application for an extension of time in which to file and serve a Notice of Appeal from a judgment of Scarlett FM, handed down on 3 October 2007 ([2007] FMCA 1749). The last date for filing the appeal, in accordance with Order 52 rule 15(1) of the Federal Court Rules was 24 October 2007. The application for an extension of time was filed on 12 November 2007. The application was, when filed, endorsed in respect of the hearing date and time ‘Date and Time to be advised by the registry’. The Court file includes a copy of a letter from the National Appeals Registrar to the applicant, directed to both the postal address for service provided at the foot of the application, and also at the residential address provided in an accompanying affidavit of the applicant filed 12 November 2007. A further copy of the letter was sent to the respondent Minister’s solicitors for the attention of Ms McDonald.

2 Ms McDonald, who appears for the Minister today on the hearing of the application, informs me that she received her copy of the Court’s communication. That letter indicated that the matter would be listed for hearing before me in the Law Courts Building at Queens Square, Sydney at 10:15 am today. Further evidence of notification of the time and place for hearing was provided to the applicant by the solicitors for the respondent Minister on, or about, 26 February 2008. On that day, a letter was posted by the respondent Minister’s solicitors to the applicant by Express Post, and a copy of the Express Post identification number has been attached to the copy of the letter, which is before me. A further copy of the same letter was sent by the respondent Minister’s solicitors to the applicant by courier on 26 February 2008, and a copy of the courier’s ‘Booking details’, would tend to suggest that delivery was effected to the address indicated on 26 February 2008. The letter from the respondent Minister’s solicitors to the applicant confirmed that the hearing would take place before me, in this place at 10:15 am today. The letter included a copy of the respondent Minister’s outline of submissions.

3 The applicant’s name was called outside the Court three times at about 10:23 am, as was the pseudonym by which the applicant is known for the purposes of these proceedings. He did not appear. In the circumstances I have been asked by the respondent Minister to treat the applicant’s non-appearance as a failure to prosecute the proceedings with due diligence, within the meaning of Order 35A, rule 2(1)(f) of the Federal Court Rules, and in light of the applicant’s default, to order that the application be dismissed in accordance with Order 35A , rule 3(1)(a). It seems to me, in the circumstances, that that is an appropriate course to follow.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

The Applicant did not appear.

Solicitor for the First Respondent:	Z McDonald of DLA Phillips Fox

The Second Respondent filed a submitting appearance.

Date of Hearing:	29 February 2008

Date of Judgment:	29 February 2008

Federal Court of Australia

SZJXS v Minister for Immigration and Citizenship [2008] FCA 409 (29 February 2008)