SZOOF v Minister for Immigration and Citizenship [2011] FCA 126 (18 February 2011)

Last Updated: 21 February 2011

FEDERAL COURT OF AUSTRALIA

SZOOF v Minister for Immigration and Citizenship [2011] FCA 126

Citation:		SZOOF v Minister for Immigration and Citizenship [2011] FCA 126
Parties:		SZOOF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1675 of 2010
Judge:		FOSTER J
Date of judgment:		18 February 2011
Legislation:		Federal Court of Australia Act 1976 (Cth), ss 25(2), 25(2B)(bb)(ii) and 25(2BA) Federal Court Rules O 35A r 2(a) and (f)
Cases cited:		SZOOF v Minister for Immigration and Citizenship [2010] FMCA 827 related Moussalli v Western Power [2010] FCA 1120 applied
Date of hearing:	18 February 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	6
Counsel for the Applicant:	The Applicant did not appear
Solicitor for the First Respondent:	Mr M Alderton of Sparke Helmore
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1675 of 2010

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

JUDGE:	FOSTER J
DATE OF ORDER:	18 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant’s Application for an extension of the time within which she might appeal from a decision of Nicholls FM given on 28 October 2010 in proceeding No SYG 1695 of 2010 (SZOOF v Minister for Immigration and Citizenship [2010] FMCA 827) be dismissed.
2. The applicant pay the first respondent’s costs of and incidental to the Application.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1675 of 2010

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

JUDGE:	FOSTER J
DATE:	18 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time within which to appeal from a decision of a Federal Magistrate given on 28 October 2010 (SZOOF v Minister for Immigration and Citizenship [2010] FMCA 827). The Federal Magistrate dismissed an application by the applicant for judicial review of a decision of the Refugee Review Tribunal made on 2 July 2010 which affirmed a decision made by a delegate of the Minister to refuse to grant a protection visa to the applicant.
2. In an affidavit sworn on 10 February 2011 which was read at the hearing today, the solicitor for the first respondent referred to and annexed immigration records which prove that the applicant left Australia on 6 January 2011 and, as at 10 February 2011, had not returned. In light of those facts, I had the matter called outside the Courtroom this morning. There was no appearance either by or on behalf of the applicant when the matter was called.
3. In those circumstances, I propose to dismiss the Application pursuant to ss 25(2), 25(2B)(bb)(ii) and 25(2BA) of the Federal Court of Australia Act 1976 (Cth). The combined effect of those sections is that, if an applicant fails to attend a hearing in respect of an application such as the Application with which I am presently dealing, the Court may dismiss the application out of hand without considering the merits of the application. Those provisions are designed to bring to an end proceedings which the moving party does not intend to press as soon as practicable and at minimum cost to the other party.
4. In addition, the applicant has not complied with the direction of the Court made by Deputy District Registrar Morgan on 6 December 2010 that she should file and serve full written submissions by no later than five clear working days before the hearing of her application ie by 10 February 2011. I therefore also rely upon O 35A r 2(a) and (f) of the Federal Court Rules in dismissing the present Application.
5. In any event, I am not satisfied that I should exercise my discretion in favour of the relief which the applicant seeks. Although the delay in the present case is only 14 days, the applicant has failed to proffer any reasons why an extension of time should be granted and has not provided an adequate explanation for her failure to file and serve a Notice of Appeal within the time prescribed by the Rules of Court. In addition, the draft Notice of Appeal attached to her Application for an Extension of Time is inadequate. The grounds to be relied upon are expressed in the most general terms. No particulars of those grounds have been furnished. A Notice of Appeal in the form of the draft submitted to the Court by the applicant would be liable to be struck out upon the basis that it was not a proper or adequate Notice of Appeal. I would not, therefore, be prepared to allow the applicant to file a Notice of Appeal in the form of the applicant’s draft Notice of Appeal. The attributes of a proper and adequate Notice of Appeal were discussed and explained in Moussalli v Western Power [2010] FCA 1120 at [47]–[48].
6. For all of the above reasons, I will dismiss the applicant’s Application with costs.
   

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

Associate:

Dated: 18 February 2011