CRD16 v Minister for Immigration and Border Protection
[2017] FCA 1416
•24 November 2017
FEDERAL COURT OF AUSTRALIA
CRD16 v Minister for Immigration and Border Protection [2017] FCA 1416
Appeal from: Application for an extension of time: CRD16 v Minister for Immigration [2017] FCCA 1500 File number: SAD 202 of 2017 Judge: WHITE J Date of judgment: 24 November 2017 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time within which to appeal against a judgment of the Federal Circuit Court – Applicant did not attend hearing – Applicant had not contacted First Respondent or the Court – application to dismiss proceeding under r 5.23 of the Federal Court Rules 2011 – Applicant in default – the application for an extension of time is dismissed. Legislation: Federal Court Rules 2011 (Cth) r 5.23 Date of hearing: 24 November 2017 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: Mr P d’Assumpcao Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
SAD 202 of 2017 BETWEEN: CRD16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WHITE J
DATE OF ORDER:
24 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The application for the extension of time filed on 27 July 2017 is dismissed.
2.The Applicant is to pay the costs of the First Respondent of and incidental to the application for the extension of time, which are fixed in sum of $1,756.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
WHITE J:
The Court was to hear today an application by the Applicant for an extension of time in which to appeal against a judgment of the Federal Circuit Court (the FCC), delivered on 30 June 2017. The 21 day period fixed for the commencement of an appeal against that decision expired on 21 July 2017. The Applicant did not commence an appeal within that period, but commenced the present application six days later on 27 July 2017.
The application for the extension of time was scheduled to commence at 10 am this morning. When the matter was called on, the Applicant was not present and did not answer a call. It is now 10.30 am and the Applicant has still not appeared.
The Respondent submits that the Court should make an order, pursuant to r 5.23(1)(b) of the Federal Court Rules 2011 (Cth) (the FCR), that the application for the extension of time be dismissed. The act of default which the Respondent relies upon for that submission is the Applicant’s failure to attend the hearing.
I am satisfied that the circumstances enlivening the power in r 5.23(1)(b) do exist, so the question is whether or not the Court should, in the exercise of the discretion thereby reposed in it, make the order for dismissal. In that respect, the following matters are pertinent.
First, the Applicant has had notice of today’s hearing. The Court itself provided notice by an email to the email address provided by the Applicant on his application for an extension of time. That notice was sent on 11 October 2017 and indicated, on its face, that the hearing of the application was to commence at 10 am today. Secondly, the Applicant was provided by the First Respondent with a copy of his outline of submissions in connection with the application. That outline was provided on 15 November 2017, under cover of a letter which included the following:
[2]This matter is listed for a final hearing on Friday, 24 November 2017 at 10 am. You are expected to attend this hearing. If you fail to attend, we may apply to have the matter dismissed in your absence.
[3]If you are not able to attend the hearing, you should apply to the court for an adjournment. …
(Emphasis in the original)
The Applicant has not contacted either the First Respondent or the Court to provide any explanation for his non-attendance today, and nor has he sought an adjournment of today’s hearing. The Applicant has not provided an outline of the submissions which he intended to make on the hearing, nor an accompanying list of authorities. In short, there is no objective indication of an intention by the Applicant to pursue his application.
Counsel for the Minister submitted that the Court should also be satisfied that the application for the extension of time lacks merit. I refrain from expressing any view about that question. I note, however, that the Applicant has not provided an outline of the submissions he would make from which some assessment of the possible merit of his application could be made and that, at least on my present understanding, it is not immediately obvious that he has in the proposed grounds of appeal identified an error by the FCC Judge, which could be said to be reasonably arguable.
In these circumstances, I am satisfied that it is appropriate to exercise the power under r 5.23 of the FCR. By reason of the Applicant’s non-attendance today, the order of the Court is that the application for the extension of time, filed on 27 July 2017, is dismissed. The Applicant is to pay the costs of the First Respondent of and incidental to the application for the extension of time, which I fix in the sum of $1,756.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 29 November 2017
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