Soboleva v Minister for Immigration and Multicultural Affairs

[2001] FCA 1633

FEDERAL COURT OF AUSTRALIA

Soboleva v Minister for Immigration & Multicultural Affairs [2001] FCA 1633

TATIANA SOBOLEVA & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 868 OF 2001

LINDGREN, TAMBERLIN AND MERKEL JJ
13 NOVEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 868 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

TATIANA SOBOLEVA
FIRST APPELLANT

SERGUEI SOBOLEV
SECOND APPELLANT

VADIM SOBOLEV
THIRD APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

LINDGREN, TAMBERLIN AND MERKEL JJ

DATE OF ORDER:

13 NOVEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellants 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 868 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

TATIANA SOBOLEVA
FIRST APPELLANT

SERGUEI SOBOLEV
SECOND APPELLANT

VADIM SOBOLEV
THIRD APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	LINDGREN, TAMBERLIN AND MERKEL JJ
DATE:	13 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. By a notice of motion filed on 2 August 2001, the respondent (“the Minister”) seeks an order that the appeal be dismissed.  The application is made under Order 52 rule 38 of the Federal Court Rules.  That rule provides, inter alia, that when an appellant has not done any act required to be done by or under the Rules or otherwise has not prosecuted the appeal with due diligence, the Court may order that the appeal be dismissed for want of prosecution.  The same rule provides that a respondent may move on notice for such an order. 

2. The appellants filed their notice of appeal on 25 May 2001 and departed Australia three days later on 28 May 2001 and have not returned.  As was no doubt to be expected, they failed to attend the appointment before a Registrar of the Court on 19 June 2001 for settlement of the appeal book index.  On that day the Registrar ordered that they file and serve an appeal book index and chronological list on or before 27 June, that the appointment for settlement of the index be adjourned to 4 July at 9.30am before the Registrar, and that the Minister notify the appellants of the orders made by pre-paid registered post.  Through his solicitors, the Minister did so notify the appellants by a letter to them dated 19 June 2001.  Again, as was to be expected, the appellants did not file and serve an appeal book index and chronological list by 27 June, or attend the adjourned appointment on 4 July 2001.

3. We note that the Minister’s notice of motion and supporting affidavit as well as the letter dated 19 June from the Minister’s solicitors to the appellants were sent to the appellants by registered post but were returned to the Minister’s solicitors in an envelope marked “not at this address” in one case, “Unknown at Address” in the other case, and “return to sender” in both cases.

4. Finally, there is evidence before the Court that the appellants held a bridging visa "Class A" (Class WA) which entitled them to remain in Australia pending the outcome of their appeal, but not to return to Australia if they left this country in the meantime. 

5. The Court is of the view that the ground referred to in Order 52 rule 38 is established and that orders should be made as sought in the notice of motion.  Accordingly the orders of the Court are that:

   1.        The appeal be dismissed.

   2.        The appellants pay the respondent’s costs.

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

Associate:

Dated:             21 November 2001

The Appellants did not appear.
Solicitor for the Respondent:	Ms S E Hanstein of Blake Dawson Waldron
Date of Hearing:	13 November 2001
Date of Judgment:	13 November 2001