SZIEP v Minister for Immigration and Citizenship

[2007] FCA 246

FEDERAL COURT OF AUSTRALIA

SZIEP v Minister for Immigration and Citizenship [2007] FCA 246

Federal Court Rules O 35A, O 35A r 2(1)(e), O 35A r 2(1)(f), O 35A r 3(1), O 52 r 15

SZIEP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1827 OF 2006

NICHOLSON J
22 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1827 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIEP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLSON J
DATE OF ORDER:	22 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The description of the first respondent be changed to Minister for Immigration and Citizenship.

2.The application for the extension of time to file and serve a notice of appeal be dismissed.

3.The applicant pay the first respondent's costs of the application, fixed in the sum of $800.

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	NSD 1827 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIEP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLSON J
DATE:	22 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for extension of time to file and serve a notice of appeal.  The applicant filed that application on 21 September 2006.  In doing so, he gave his address for service, being a street address in Arncliffe, New South Wales.

2. On 27 September 2006 the National Appeals Registrar of the Court wrote to the applicant at his nominated address.  On 13 October 2006 the senior executive lawyer of the solicitors for the first respondent wrote to the applicant at the same address, enclosing a copy of directions.  On 13 December 2006 the National Appeals Registrar wrote to the applicant at the same address, giving the time, date and place of the hearing, being this hearing.  On 20 December 2006 the solicitors for the first respondent wrote to the applicant at the same address, repeating the date, time and place for the hearing of the application.

3. In letters from the first respondent, the applicant was incorrectly addressed as of female gender.  However, the address was the correct address in each case, and I do not regard that misdescription as material, the full name of the applicant being stated in each case.

4. On 3 January 2007 the solicitors for the first respondent received via return mail what appears to have been a letter to the respondent, dispatched on 21 December 2006.  By inference, that appears to me to be the last of the letters I referred to, namely, the letter of 20 December 2006 from the solicitors of the first respondent to the applicant.  The applicant has not notified the Court of any alternative address for service.

5. There are various provisions in the Federal Court Rules addressing non-attendance by an applicant.  Section 25 contains provisions in respect of failure of an appellant to attend a hearing relating to the appeal, but that gives rise to legal considerations of what comes within the description, ‘appellant’ and the words, ‘relating to’.  There are also provisions in O 52 of the Federal Court Rules, which, in one way or another, are applicable to an appeal and give rise to argument as to whether they're applicable to the case of an application:  see, for instance, O 52 r 15 and r 38A.

6. In my view, it is appropriate to turn to O 35A of the Federal Court Rules.  I have found that the applicant is not in attendance.  I have also found that the applicant has had due notice of the date, time and place of the hearing.  In addition, I find that the applicant has failed to carry out directions that preceded this hearing.  In those circumstances, I consider it is appropriate to find that the applicant is in default under O 35A r 2(1)(e) and r 2(1)(f).  Consequently, there arises a power for dismissal pursuant to O 35A r 3(1).

7. For these reasons, I consider it is appropriate that an order should be made dismissing the application, and I will make an order to that effect for the reasons which I have just given.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated:       1 March 2007

The Applicant did not appear
Counsel for the Respondent:	D Watson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 February 2007
Date of Judgment:	22 February 2007