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

[2005] FCA 269

FEDERAL COURT OF AUSTRALIA

Applicant NAOF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 269

APPLICANT NAOF OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1690 of 2004

ALLSOP J
16 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1690 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT NAOF OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	16 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to section 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) the application be dismissed.

2.The applicant pay the respondent’s costs in the sum of $800.00.

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 1690 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	ALLSOP J
DATE:	16 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant applies for leave to appeal and for an extension of time to file and serve a notice of appeal from the judgment of a Federal Magistrate.  Orders were made for the matter to be heard today.

2. An affidavit of Ms Nanson, a solicitor of the Australian Government Solicitor, has been read explaining why the applicant is not before the Court.  Apparently without informing the Court, according to someone at her address she has left the country to be with her sick mother.  I am not aware of the precise status of the applicant's visa status should she attempt to return.  However, it may well be that she will have some difficulty in returning.

3. Mr Markus, solicitor for the respondent, asks for an order dismissing the application for leave to appeal, and for an extension of time, under s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth).  If that order is entered there will be arguably no ability to set that order aside having been made in the absence of a party.  However, it is an interlocutory order and on one view there is no reason why the application could not be reinstated and argument take place on a similar basis as if there were a direct right to set aside orders made in the absence of parties.

4. The alternative is to recognise nunc pro tunc an application to discontinue the proceedings that was filed by the applicant before she departed.  I think in all the circumstances it is appropriate to accede to the application of Mr Markus.  I make an order pursuant to s 25(2B)(bb)(ii) that the application be dismissed and in all the circumstances I think it appropriate to make an award of costs in a specific sum to avoid any further costs.  Mr Markus asks for a sum of $800.  Looking at the file that appears entirely appropriate.

5. The orders I make are: 

   1.Pursuant to section 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) the application be dismissed.

   2.The applicant pay the respondent’s costs in the sum of $800.00.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             22 March 2005

Counsel for the Respondent:	Mr A Markus (Slr)
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 March 2005
Date of Judgment:	16 March 2005