Applicant NAFR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1204

FEDERAL COURT OF AUSTRALIA

Applicant NAFR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1204

APPLICANT NAFR OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1203 OF 2004

STONE J
14 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1203 OF 2004

BETWEEN:	APPLICANT NAFR OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	14 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs in the sum of $1,500.

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 1203 OF 2004

BETWEEN:	APPLICANT NAFR OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	14 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to file and serve a notice of appeal from orders made by Federal Magistrate Raphael on 6 August 2002.  On that day his Honour made consent orders dismissing an application for a review of a decision of the Refugee Review Tribunal handed down on 27 February 2002.  The application for leave was filed on 6 August 2004, exactly two years after the Federal Magistrate’s decision. 

2. In an affidavit accompanying her application for an extension of time the applicant states that the solicitor on the record in the proceedings before the Federal Magistrate did not obtain her permission to discontinue the proceedings, nor did she instruct the solicitor to agree to the consent orders.  This is a serious allegation and, if it has any substance, an application to set the orders of the Federal Magistrate aside should have been made as soon as possible after the applicant became aware of those orders. 

3. On 20 August 2004 I made directions for the hearing of this application including that the applicant file and serve, by 7 September 2004, any documents on which she intended to rely in support of her application, written submissions in support of her application and a list of all relevant authorities.  Order 3 of those orders stated that the matter was listed for hearing on 14 September.  The application in this proceeding was filed by solicitors for the applicant and on the Court file is a copy of a letter sent to those solicitors advising them of the orders made on August 20.  On 7 September the applicant filed a second affidavit in which she refers to her financial difficulties and to her difficulties in representing herself.  She also states that she needs more time to obtain a transcript of the Tribunal hearing from her husband in Manila.  The affidavit does not provide any explanation for her delay in seeking to set aside the orders made by the Federal Magistrate more than two years ago. 

4. At the hearing today there was no appearance by the applicant or any legal representative for her.  From her affidavit of 7 September it would seem that the applicant is now representing herself, although the solicitors who filed the application have not filed any notice of ceasing to act.  In any event it is clear that the applicant was aware that the hearing was scheduled for today and the Court has received no explanation for her failure to appear.  Ms Rayment, who appeared for the respondent, submitted that, in the circumstances, the matter should proceed in the absence of the applicant and I accepted this submission. 

5. The applicant claims that she did not consent to the orders made by the Federal Magistrate.  Annexed to her affidavit of 6 August is a handwritten note which says: 

   ‘T/A on client on 26/7/02.  I advised client that his application is most likely to be dismissed by the Federal Court if the matter proceeds to a hearing.  I advised he should withdraw from Federal Court.  He said he’ll think about it and call me back.’ 

   It would seem that the applicant invites the Court to infer that this note relates to her proceeding before the Federal Magistrate and supports her claim not to have agreed to the consent orders.  I am not prepared to draw this inference.  There is no letterhead on the note and nothing to indicate who made it other than an illegible signature.  There is no indication as to the identity of the client to which the note refers.  The use of the pronoun ‘his’ rather than ‘her’ and the reference to the Federal Court rather than the Federal Magistrates Court suggest to me that the note does not concern this applicant.  Moreover, the fact that the applicant was not available for cross-examination by the respondent is another reason why I should not accept her claim that she did not consent. 

6. In summary the applicant has given no explanation for her extreme delay in seeking to have the Federal Magistrate’s orders set aside or for her non-appearance today and she has not provided any acceptable evidence to support her substantive claim.  For these reasons leave to appeal must be refused.  The applicant should bear the respondent’s cost however, contrary to the respondent’s submissions, I do not accept that this is an appropriate case for the award of indemnity costs.  The orders of the Court are that the application is dismissed and the applicant is to pay the respondent’s costs in the sum of $1,500. 

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

Associate:       

Dated:            14 September 2004

Counsel for the Applicant:	The applicant did not appear
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 September 2004
Date of Judgment:	14 September 2004