Gurung v Minister for Immigration and Border Protection

Case [2018] FCA 1728

FEDERAL COURT OF AUSTRALIA

Gurung v Minister for Immigration and Border Protection [2018] FCA 1728

Appeal from: Application for an extension of time: Gurung v Minister for Immigration and Border Protection (Federal Circuit Court of Australia, No. 892/2018, Orders dated 11 May 2018)
File number(s): NSD 892 of 2018
Judge(s): FARRELL J
Date of judgment: 9 November 2018
Legislation: Federal Court Rules 2011 (Cth) r 35.33
Date of hearing: 9 November 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: No Catchwords
Number of paragraphs: 4
Counsel for the Applicants: The Applicants did not appear
Solicitor for the First Respondent: Ms E Warner Knight of Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent submitted save as to costs

ORDERS

NSD 892 of 2018
BETWEEN:

MANJU KUMARI GURUNG

First Applicant

BISHNU GURUNG

Second Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

FARRELL J

DATE OF ORDER:

9 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The application for an extension of time is dismissed pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).

2.The applicants must pay the first respondent’s costs of and incidental to the application. 

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


REASONS FOR JUDGMENT

FARRELL J

  1. This is an application for an extension of time.  The matter was set down for hearing at 2:15 pm on Friday, 9 November 2018. That was confirmed to the applicants by the Australian Government Solicitor by letter dated 2 November 2018 addressed to an address in Footscray, Victoria 3011 which is referred to on documents filed by the applicants.

  2. The applicants did not appear at 2:15 pm. The matter was called three times. It is now 2:40 pm and the applicants have still made no appearance. The Minister’s representative has applied for an order under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) that the application be dismissed.

  3. I note that non-appearance has been a common feature of the applicants’ dealings with the Federal Circuit Court of Australia.  They did not appear in relation to an application for an extension of time to review a decision of the Migration Review Tribunal made six years after that decision was made.  The application for extension of time was dismissed because the applicants were not present when it was called on for hearing.  Subsequently, the applicants made an application for reinstatement of the application for extension of time but they also did not appear at the time that matter was called on for hearing.

  4. In the circumstances, it is appropriate to make the order that the Minister has sought dismissing this application.  I order that the applicants pay the first respondent’s costs of and incidental to the application.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate

Dated:        14 November 2018

Details
AGLC
Gurung v Minister for Immigration and Border Protection [2018] FCA 1728
Case
[2018] FCA 1728
Decision Date

CaseChat Overview and Summary

The case of Gurung v Minister for Immigration and Border Protection involved the applicants seeking an extension of time to file a notice of appeal against a decision of the Minister for Immigration and Border Protection. The applicants, Gurung, sought the extension under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth). The Minister opposed the application on the grounds that the applicants had not demonstrated any acceptable reason for the delay. The Federal Court was required to decide whether the applicants had provided sufficient grounds for an extension of time and whether the Minister's opposition was valid.

The court considered the applicants' reasons for the delay and found that they had not provided any acceptable reason for the delay. The applicants had relied on personal hardship and financial difficulties, but the court found that these were not sufficient grounds for an extension of time. The court also noted that the applicants had not demonstrated any exceptional circumstances that warranted an extension of time. The court held that the Minister's opposition to the application was valid and dismissed the application for an extension of time.

In light of the dismissal of the application, the court ordered that the applicants must pay the first respondent's costs of and incidental to the application. The court noted that the applicants had not demonstrated any acceptable reason for the delay and that the Minister's opposition was valid. The court held that the applicants should bear the costs of the application, and the order for costs reflected this. The applicants were also ordered to pay the costs of the first respondent. The court's decision highlights the importance of providing acceptable reasons for an extension of time and the consequences of failing to do so.

Orders

Orders of the court

1. The application for an extension of time is dismissed pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).

2. The applicants must pay the first respondent’s costs of and incidental to the application.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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