NAOV v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 831

FEDERAL COURT OF AUSTRALIA

NAOV v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 831

NAOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N472 OF 2004

TAMBERLIN J
SYDNEY
24 JUNE 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N472 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NAOV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	24 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with 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	N472 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NAOV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	24 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter was fixed, in the presence of the appellant yesterday, for hearing this afternoon at 2.15 p.m.  There was no appearance by the appellant shortly after 2.15 p.m. and I stood the matter down until 3 p.m.  Again the matter was called, and the appellant made no appearance. The respondent has applied for the matter to be dismissed pursuant to order 52 rule 38A of the Federal Court Rules, which relevantly provides that:

   “1) If a party is absent when an appeal is called on for hearing, the Court may:

   (a)order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or

   (b)       adjourn the hearing; or
   (c)       …

   (d)proceed with the hearing, either generally or in relation to any claim for relief in the appeal.”

2. In my view, it is appropriate in the present case to exercise the power of the Court under that rule and accordingly I propose to dismiss the appeal with costs.

3. I should add that I have considered the decision of the Federal Magistrate and I am not persuaded that there has been any error shown in the decision of the learned Magistrate. 

4. I also add that when the appellant appeared before me yesterday, he indicated that he believed the matter was on for hearing today and not yesterday.  There was some confusion on this point, as the appellant had been notified that the matter was on for hearing today.  In order to accommodate the appellant, I stood the matter over until today.  This gave the appellant the necessary time to consider the submissions that had been made on behalf of the respondent.  I am not persuaded that there is any procedural unfairness in proceeding with the matter today. 

5. The appellant said before me yesterday that he had not received a copy of the decision of the Federal Magistrate until some time after it had been given.  However, it was open to the appellant to pursue the question of obtaining the written reasons of the ex tempore judgment given by the Federal Magistrate in this matter, and no initiative appears to have been taken in this regard until the judgement became available some short time ago.

6. I also note that a detailed Notice of Appeal has been formulated and filed with the Court.  On 5 April 2004, this Notice of Appeal contained seven detailed grounds as to alleged error on the part of the Federal Magistrate, and yet when the appellant appeared before me yesterday, he indicated that he had not been able to obtain legal advice, and suggested that there ought to be an adjournment of the matter for a further period of three weeks.

7. I am not persuaded in the circumstances, particularly having regard to the fact that the assistance of a migration agent had been available to appellant at the time when the Notice of Appeal was lodged, that any sufficient effort had been made by the appellant to obtain legal assistance in the intervening period between that date and the present time.

8. Accordingly, I do not consider that there will be any unfairness and that the interests of justice will be served by dismissing the appeal with costs pursuant to the rule referred to earlier.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             28 June 2004

No appearance by the Appellant
Counsel for the Respondent:	J A C Potts
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	24 June 2004
Date of Judgment:	24 June 2004