BZADH v Minister for Immigration and Citizenship

[2013] FCA 376

FEDERAL COURT OF AUSTRALIA

BZADH v Minister for Immigration and Citizenship [2013] FCA 376

Citation:		BZADH v Minister for Immigration and Citizenship [2013] FCA 376
Parties:		BZADH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		QUD 793 of 2012
Judge:		REEVES J
Date of judgment:		14 March 2013
Date of hearing:	14 March 2013
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	6
Counsel for the Applicant:	The Applicant did not appear
Solicitor for the First Respondent:	Gemma E O’Connor of Clayton Utz
Solicitor for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 793 of 2012

BETWEEN:

BZADH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	14 MARCH 2013
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application filed 24 December 2012 is dismissed.

2.The applicant pay the first respondents costs of and incidental to the application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 793 of 2012

BETWEEN:

BZADH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	14 MARCH 2013
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT
(corrected from the transcript)

1. The applicant, BZADH, has applied for an extension of time to file a notice of appeal under Rule 36.05 of the Federal Court Rules 2011. It is worth noting at the outset that the order of the Federal Magistrates Court that BZADH is seeking to appeal was an interlocutory order. That being so, under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), BZADH needs to apply for leave to appeal. Thus, his application should have been an application for an extension of time for leave to appeal under Rule 35.14 of the Federal Court Rules 2011, not an application under Rule 36.05. Nonetheless, I will deal with this matter as if his application under Rule 36 has been properly brought.

2. BZADH’s application was listed for first directions on 7 March 2013.  Two days prior to that hearing, he contacted the Registry and requested an adjournment because he claimed he had to attend a physiotherapy appointment.  At the commencement of the directions hearing on 7 March, BZADH was called and did not appear.  I adjourned the matter to a further directions hearing on 14 March 2013 and directed the Deputy District Registrar to give notice to BZADH that he should appear at that hearing. 

3. In accordance with my direction, the Deputy District Registrar sent a letter to BZADH on 7 March.  In it the Deputy District Registrar said, among other things:

   Please note that your application may be dismissed if you fail to appear at the next directions hearing before the Court at 9.15 a.m. on Thursday, 14 March 2013. 

4. On the day before the directions hearing on 14 March 2013, BZADH again contacted the Registry and requested that the matter be adjourned because he claimed he had a similar medical issue.  At the commencement of that hearing, BZADH was called and did not appear.

5. As BZADH has now failed to appear on two occasions, the first respondent, the Minister for Immigration and Citizenship, has applied to have his application dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), viz the failure of the applicant to attend a hearing related to the appeal (see also Rule 36.11(2)(j)(ii)). In my view, a directions hearing of an application for an extension of time to file an appeal is “related to the appeal” within the terms of that provision.

6. I do not consider the BZADH’s informal contacts with the Registry (above) provide any, much less a sufficient, justification for his failure to attend the two directions hearings on 7 March and 14 March 2013.  Accordingly, I order that his application for an extension of time to file a notice of appeal be dismissed.  I also order that the BZADH pay the Minister’s costs of and incidental to the application.

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

Associate:

Dated:       24 April 2013