Applicant Nati v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 163

FEDERAL COURT OF AUSTRALIA

Applicant NATI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 163

APPLICANT NATI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1658 of 2004

JACOBSON J
28 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1658 OF 2004

BETWEEN:	APPLICANT NATI 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 1658 OF 2004

BETWEEN:	APPLICANT NATI 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 extension of time in which to make an application for leave to appeal against the orders and judgment of Federal Magistrate Mowbray dated 13 October 2004. On that date the Federal Magistrate dismissed the application as incompetent pursuant to section 477(1A) of the Migration Act 1958 on the ground that the application was filed outside the time stipulated for the filing of such an application. 

2. When the matter was called on for hearing this afternoon, there was no appearance by the applicant.  I was aware before the matter was called that it was unlikely that the applicant would appear because my associate received in chambers this morning a facsimile from the applicant.

3. The facsimile stated that the matter had been set down for hearing at 2.15 p.m. today before me.  The facsimile then said “I am submitting some information regarding my no appearance of the above date.  I am sick today”.  There was no doctor's certificate or any supporting documentation. 

4. Ms Harris, for the Minister, asks me to dismiss the application for want of appearance by the applicant.  It is plain from the facsimile to which I have referred that the applicant was aware of today's hearing.  I am also satisfied that I have power to make the order sought by the respondent.  It seems to me that the power is to be found in either section 25(2B)(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. 

5. 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.

6. 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.  It is clear that this is an interlocutory hearing. 

7. I dealt with a similar application in SZDJA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1499. The power to make the order is to be found in the section of the Act 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 Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1559 per Whitlam J.

8. I should add that the background to the application was set out in the Federal Magistrate's judgment at [3] to [5]; see [2004] FMCA 843. The matter had previously been before Federal Magistrate Barnes and Conti J, both of whom found that no jurisdictional error was disclosed in the reasons of the RRT. It appeared to me that the application for an extension of time would have served no useful purpose because the appeal was doomed to failure. Accordingly, I will order that the application be dismissed.

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

I certify that the preceding nine (9) 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 Harris
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	28 February 2005
Date of Judgment:	28 February 2005