Kabir v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 342

FEDERAL COURT OF AUSTRALIA

Kabir v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 342

MIGRATION – no appearance for the appellant at hearing of appeal – want of prosecution of appeal – appeal dismissed.

Judiciary Act 1903 (Cth)

Federal Court Rules, Order 52 Rule 38(1)(a)

MOHAMMAD AZHARUL KABIR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1285 OF 2002

CONTI J
9 APRIL 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1285 OF 2002

BETWEEN:	MOHAMMAD AZHARUL KABIR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	9 APRIL 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant is to pay the respondent’s costs.

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 1285 OF 2002

BETWEEN:	MOHAMMAD AZHARUL KABIR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE:	9 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an appeal from the judgment of Federal Magistrate Raphael given on 20 November 2002 in Sydney. The notice of appeal of 2 December 2002 complains of a number of grounds; chiefly, error of law, jurisdictional error, procedural fairness, and asserts an entitlement to relief under s 39B of the Judiciary Act1903 (Cth). No particularity is proffered in relation to any of those grounds of appeal although the document purports to be prepared by the appellant in person.

2. The appellant was duly notified by the solicitors for the respondent of the hearing today. The notification was made by a letter of 1 April 2003 addressed to the appellant at Unit 5, 1 Toxteth Road Glebe in the State of New South Wales. The Minister's submissions to this court were enclosed with that letter.

3. The appellant has not appeared at the hearing this morning. His name has been called.  An interpreter has kindly presented himself to the Court to be of assistance in the circumstance that the appellant had appeared.

4. I have read the reasons for judgment of the Federal Magistrate below and in any event I was unable to see or detect any possible viable ground of appeal from his Honour's reasons.

5. The indication before me is that this is just one of those numerous circumstances where grounds of appeal are provided from some source unknown to an appellant and in the present case for the ostensible purpose of delaying the outcome of the appeal by way of enforcement of the Federal Magistrate's judgment.

6. In the circumstances, I am satisfied that there has been a want of prosecution of the appeal within the meaning of Order 52 Rule 38(1)(a) of the Federal Court Rules. In the result, I order that the appeal be dismissed pursuant to Order 52 Rule 38(1)(a) of the Federal Court Rules and that the appellant pay the respondent's costs of the appeal.

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

Associate:

Dated:             16 April 2003

Appellant:	No appearance
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 April 2003
Date of Judgment:	9 April 2003