NANJ v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FCA 532

FEDERAL COURT OF AUSTRALIA

NANJ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 532  

Appeal from:	Application for an extension of time and to appeal from: NANJ v Minister for Immigration & Anor [2020] FCCA 210
File number:	NSD 493 of 2020
Judgment of:	STEWART J
Date of judgment:	25 May 2023
Catchwords:	PRACTICE AND PROCEDURE – appeals – application for an extension of time and to appeal – where applicant failed to appear at case management hearing despite notice or to prosecute the appeal – application dismissed with costs
Legislation:	Federal Court Rules 2011 (Cth) rr 36.73, 36.74
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	13
Date of hearing:	25 May 2023
Counsel for the Applicant:	The applicant did not appear.
Solicitor for the First Respondent:	G Pasas of Clayton Utz
Counsel for the Second Respondent:	The second respondent filed a submitting notice save as to costs.

ORDERS

NSD 493 of 2020

BETWEEN:

NANJ

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	STEWART J
DATE OF ORDER:	25 MAY 2023

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to the Minister for Immigration, Citizenship and Multicultural Affairs.

2.The proceeding be dismissed.

3.The applicant pay the first respondent’s costs in the lump sum amount of $3,500.00.

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

REASONS FOR JUDGMENT
(Delivered ex tempore)

STEWART J:

1. In this matter, the applicant applies for an extension of time to appeal from a judgment of the Federal Circuit Court of Australia, as that Court was then styled, and to appeal from that judgment. The matter is governed by Pt 36 of the Federal Court Rules 2011 (Cth).

2. The application for an extension of time and supporting documents were filed in May 2020.

3. As is required, the applicant provided an address for service. The applicant is self-represented. The address for service recorded an email address, a mobile telephone number and a physical address. The first respondent (the Minister) filed a notice of address for service and the second respondent (the Administrative Appeals Tribunal) filed a submitting notice.

4. It appears that the matter was held in abeyance for some time due to the COVID-19 pandemic, the applicant’s self-representation and need for an interpreter making an online hearing more difficult to facilitate than might otherwise have been the case.

5. Since October 2022, there have been several emails to the parties in an endeavour to list the matter for hearing. The applicant has not responded. At my request, a staff member from the Court’s Registry with the assistance of an interpreter has spoken to the applicant on the telephone at the number given by him, and he has said that he wishes to discontinue the matter. Despite the requirement being explained to him, the applicant has failed to file a notice of discontinuance. That requirement is expressed in r 36.73.

6. On 16 May 2023, I directed my Associate to list the matter for case management hearing at 9.30am on 25 May, ie, today. The parties were notified by email at the email addresses given by them for service. The applicant was also notified of the listing by telephone by the Registry. He later sent an email saying that he will not be attending and that he wishes to “withdraw” the matter, but he has not filed a notice of discontinuance.

7. The applicant’s given name and pseudonym were called outside court on the matter being called. He has not appeared.

8. In the circumstances, I am satisfied of the following.

9. First, the applicant has had adequate notice of the hearing today. Indeed, by his email he has confirmed that he is aware of the hearing.

10. Secondly, the applicant has not manifested any intention to continue the proceeding. On the contrary, he has positively communicated his desire to “withdraw” the proceeding.

11. The applicant has thus failed to attend a hearing relating to the appeal, and he has failed to prosecute the appeal, within the meaning of rr 36.74(1)(c) and (d) respectively.

12. In the exercise of the powers under r 36.74, I therefore dismiss the application.

13. The Minister seeks that his costs be paid in a lump sum amount of $3,500. He has adduced evidence in support of that amount. I am satisfied that the actual costs incurred by the Minister in the matter have significantly exceeded that amount. I will therefore make the order that is sought.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.

Associate:

Dated:       25 May 2023