Kaur v Minister for Immigration and Border Protection

[2014] FCA 247

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2014] FCA 247

Citation:		Kaur v Minister for Immigration and Border Protection [2014] FCA 247
Appeal from:		Application for extension of time: Kaur v Minister for Immigration & Anor [2013] FCCA 1945
Parties:		HARINDER KAUR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:		SAD 339 of 2013
Judge:		BESANKO J
Date of judgment:		12 March 2014
Legislation:		Federal Court Rules 2011 (Cth) rr 5.22, 5.23
Cases cited:		SZKRO v Minister for Immigration and Citizenship [2007] FCA 1796
Date of hearing:	12 March 2014
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	6
Counsel for the Applicant:	The Applicant did not appear
Counsel for the First Respondent:	Mr R Prince
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 339 of 2013

BETWEEN:

HARINDER KAUR
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	12 MARCH 2014
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application for an extension of time dated 20 November 2013 be dismissed.

2.The applicant 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.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 339 of 2013

BETWEEN:

HARINDER KAUR
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	12 MARCH 2014
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to appeal from orders made by the Federal Circuit Court of Australia on 25 October 2013.  Those orders included, relevantly, an order that the applicant’s application for judicial review of a decision of the Migration Review Tribunal be dismissed.  The applicant’s application for an extension of time was supported by an affidavit of the applicant in which she advanced evidence in support of her application for an extension of time.  Both the application for an extension of time and the applicant’s affidavit gave an address for service for the applicant, being an address in Thomastown, Victoria.  Both documents also gave an email address for the applicant. 

2. The application for an extension of time came on for directions before a Registrar of the Court on 22 November 2013.  One of the orders made by the Registrar was that the applicant file and serve a written outline of submissions upon which she seeks to rely in support of the application no later than 10 business days before the hearing date.   That order has not been complied with. 

3. The applicant and the first respondent were advised of the date fixed for the hearing of the applicant’s application by letter dated 5 December 2013.  The date for hearing was Wednesday, 5 March 2014.  The applicant did not appear on 5 March 2014, and counsel for the first respondent made application for a dismissal of the applicant’s application.  I decided not to dismiss the application on the ground, in essence, that counsel for the first respondent told me that there was a record indicating that the applicant had returned to Australia on 4 March 2014 and that that might suggest that the applicant wished to pursue her application. 

4. I adjourned the hearing of the application to Wednesday, 12 March 2014 at 10.15 am.  Later on the same day, my Associate wrote to the applicant advising her that her application had been adjourned to today and that the application would be heard today and that the applicant was required to attend.  Advice was also provided to the applicant that should she not attend, her application may be dismissed in her absence.  Counsel for the first respondent has told the Court that the first respondent had also written to the applicant by letter dated 6 March 2014 advising her of the adjourned hearing date and advising her that, if she did not attend at that date and time, the first respondent would renew his application for her case to be dismissed with costs. 

5. The applicant does not appear today, and no advice has been received by the Court as to why she does not appear. Counsel for the first respondent directs my attention to rr 5.22 and 5.23 of the Federal Court Rules 2011 (Cth). The first respondent submits that the applicant is in default within paragraph (a) and within paragraph (d). As far as paragraph (a) is concerned, counsel refers to the fact that the applicant has not complied with the order made on 22 November 2013. As far as paragraph (d) is concerned, counsel for the first respondent refers to all of the circumstances to support the contention that the applicant has not prosecuted the proceeding with due diligence. Counsel also referred me to the decision of Lander J in SZKRO v Minister for Immigration and Citizenship [2007] FCA 1796.

6. In my opinion, the applicant is a party in default within r 5.22, and, having regard to the circumstances as I have outlined them, it is appropriate to make an order that her application for an extension of time be dismissed.

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

Associate:

Dated:       24 March 2014