Jang v Minister for Immigration and Citizenship

[2007] FCA 1697

FEDERAL COURT OF AUSTRALIA

Jang v Minister for Immigration and Citizenship [2007] FCA 1697

HAE KWAN JANG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 1284 OF 2007

TAMBERLIN J
5 NOVEMBER
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1284 OF 2007

BETWEEN:

HAE KWAN JANG
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	5 NOVEMBER
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed pursuant to O 35A r2 of the Federal Court Rules 1979 (Cth).

2.The first, second and third applicants pay the costs of the respondents, the sum of which is fixed at $1,600.00.

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 1284 OF 2007

BETWEEN:

HAE KWAN JANG
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	5 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from the judgment of a Federal Magistrate given on 29 May 2007.

2. When the matter was called on for hearing before me, the appellants did not appear.  The matter was then stood down for approximately an hour before being called again.  On that occasion also, the appellants did not appear.  Accordingly, I propose to make an order under O 35A r 2 of the Federal Court Rules 1979 (Cth) that the proceeding be dismissed on the basis that the appellants failed to comply with the direction of the Court to file written submissions and also failed to appear to prosecute the proceedings with due diligence.  In making this order, I note that letters were sent to the first applicant on 24 September 2007 by the solicitors acting for the first respondent and on 20 September 2007 by the Court advising that the application for leave to appeal was listed on this day at this time. 

3. The precise application before me is to seek an extension of time in which to serve a notice of appeal from the judgment of the Federal Magistrate.  I consider that this application should be dismissed.  In addition, I note that I have considered the relevant documents before me and can see no reasonable argument which would entitle the applicants to succeed on the application, even if an extension of time and leave to appeal were granted.  I do not think that the interests of justice would require that any leave be granted in this matter, having taken into account all the other considerations. 

4. I am of the view that this is an appropriate case where the respondent should have its costs and I order that the applicants pay the costs of the respondent in this matter, fixed at the amount of $1,600.00.  The costs order will only apply to the adult applicants in this matter, namely the first, second and third applicants.  This means that the fourth applicant, who I understand is a minor, will not be subject to that order.

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

Associate:

Dated:       6 November 2007

Counsel for the Respondent:	Mr R White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	5 November 2007
Date of Judgment:	5 November 2007