SZIWE v Minister for Immigration and Citizenship

[2008] FCA 287

FEDERAL COURT OF AUSTRALIA

SZIWE v Minister for Immigration and Citizenship [2008] FCA 287

Federal Court Rules, Order 35A, rule 2(1)(f)

SZIWE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD2123 OF 2007

LOGAN J
5 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2123 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIWE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	5 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time is dismissed.

2.The Applicant pay the First Respondent’s costs of, and incidental, to this application to be taxed, if not agreed.

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	NSD2123 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIWE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	5 MARCH 2008
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This matter was listed in the Sydney list for the hearing of an application under O 52, r 15 for an extension of time within which to appeal.  The hearing was listed to commence at 9.30 am.  I delayed coming in at that time, for a short time, to allow some further brief opportunity for there to be an attendance in person by the Applicant, upon my being informed beforehand that there was no Applicant currently present.

2. Upon opening Court I directed the court officer to call the name of the matter three times at the door of the Court.  There was no appearance then by or on behalf of the Applicant.  There was an appearance on behalf of the First Respondent, Minister, who sought in the circumstances the dismissal of the application.  To that end a letter dated 26 February 2008 directed to the Applicant, at the same address as that shown on an affidavit which was filed on 26 October 2007 in support of the application, was tendered to me.  That letter will be marked as exhibit 1.  The letter notifies that the firm, Clayton Utz, acts for the Minister, encloses the Minister’s submissions and notifies that the matter is listed for hearing today at 9.30 am before me in courtroom 14B, Level 14, 80 William Street, East Sydney.

3. On 18 January 2008, the court sent to the solicitors for the Minister and the Applicant, again in the case of the Applicant at the address shown in her affidavit, a formal notification of hearing at that same time and place.  The court file also discloses a communication from the Applicant of 10 January 2008, bearing that same address, signifying an intention to appear before the court by himself.  I note further that in December, whilst the particular place of hearing was not fixed, there was communication from the court notifying directions, which included the indication that the application would be heard during the block appeal period of which today forms part.

4. I am satisfied that the Applicant has had notice of the 5 March 2008 hearing and that the Applicant has not in the circumstances prosecuted the application with due diligence.  I am asked to dismiss the proceeding under O 35A r 2(1)(f).  That rule seems to me in the circumstances to be an apt basis upon which the application should be dismissed, and I dismiss it.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:       6 March 2008

Counsel for the Applicant:	There was no appearance by the Appellant.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 March 2008
Date of Judgment:	5 March 2008