Nath v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1319

FEDERAL COURT OF AUSTRALIA

NATH v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1319

MIGRATION – application for extension of time to file an appeal – applicant did not appear because he had left the country before the hearing - dismissed

NATH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 1366 of 2004

HILL J
SYDNEY
8 OCTOBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1366 OF 2004

BETWEEN:	NATH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	8 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.There be no order as to costs.

3.The respondent notify the applicant of these orders.

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 1366 OF 2004

BETWEEN:	NATH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	8 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J:

1. On 18 November 2003, Bennett J, having refused an application for adjournment, dismissed the applicant's application for judicial review and ordered him to pay costs.  The applicant did nothing thereafter until September 2004 when he applied to the court for an extension of time in which to file and serve a notice of appeal from Bennett J’s judgement.  The application was dealt with in the usual way by Sackville J as Full Court List Judge, by referring the application for extension of time to appeal to me as Duty Judge.

2. I arranged for the applicant to be notified that the matter would be heard today in a letter sent both to the applicant and the respondent's solicitors on 24 September 2004.  It seems that the applicant's wife, probably in response to that letter, notified the Registrar that the applicant had returned to Fiji where he would apply for an Australian visa and if successful would return to Australia.  She gave no indication as to what otherwise the applicant proposed to do about the application for extension of time.  I note that the protection visa, which was the subject of the proceedings before Bennett J would not permit the applicant to return to Australia.

3. I can, of course, not say what the chances are of his obtaining some other visa to enter Australia might be. 

4. When the matter was called on for hearing this morning, the applicant obviously was not present.  The respondent asked that I dismiss the application.  I was inclined to accede to that request having regard to the fact that the applicant had made no attempt to contact the court before returning to Fiji.  I do so on the basis that should, ultimately, the applicant wish to revive the present application, it would be possible for him to make an application to the Court to do so on the basis that the present application had been dismissed in his absence.

5. I would accordingly dismiss the application but make no order as to costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill .

Associate:

Dated:            28 October 2004

No appearance for the Applicant
Counsel for the Respondent:	S Zarucki
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	8 October 2004
Date of Judgment:	8 October 2004