SZJHB v Minister for Immigration and Citizenship

[2008] FCA 408

FEDERAL COURT OF AUSTRALIA

SZJHB v Minister for Immigration and Citizenship [2008] FCA 408

SZJHB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2237 OF 2007

GRAHAM J

28 FEBRUARY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2237 OF 2007

BETWEEN:

SZJHB
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	28 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT:

1.Grants leave to the respondent to file in Court an affidavit of Peter Daniel Snell sworn 28 February 2008.

2.Orders that the application for an extension of time to file and serve a Notice of Appeal be dismissed.

3.Orders that the applicant pay the respondent Minister’s costs fixed in the sum of $1,300.00.

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 2237 OF 2007

BETWEEN:

SZJHB
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	28 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to file and serve a Notice of Appeal from a judgment of Barnes FM of 22 October 2007 ([2007] FMCA 1850) in accordance with Order 52 rule 15(2) of the Federal Court Rules.  That rule provides:

   ‘15(2)Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.’

2. The Application was filed on 14 November 2007 and at the foot of the front page indicated that it had been filed by the applicant and it there nominated an address for service.  The application was endorsed by the Court ‘Date and time to be advised by the registry’ in the space provided for nomination of a time and place for hearing. 

3. The Court file includes a copy of a letter from the National Appeals Registrar to the applicant directed to her at both her address for service as nominated on the Application and also her residential address as provided in her supporting affidavit.  That letter dated 7 December 2007 clearly identified the time and place of the matter for hearing before me, namely, 10.15 today, 28 February 2008, in the Law Courts Building, Queens Square, Sydney. 

4. I note that it is now 11.45 am and the applicant has failed to appear.

5. The Court also has before it two letters directed to the applicant dated 14 December 2007 and 26 February 2008 from the solicitors for the respondent Minister to the applicant at the address for service provided by her at the foot of her application filed 14 November 2007. 

6. In a judgment delivered by me earlier this day, in a not dissimilar matter and in not dissimilar circumstances, that is to say SZKOF v Minister for Immigration and Citizenship ([2008]) FCA 333), I addressed the several provisions of the Act and rules upon which the Court could rely to dispose of a matter or otherwise deal with it in the present circumstances. 

7. Mr Snell, solicitor of Sparke Helmore, has drawn my attention to Order 35A rule 2(1)(f) of the Federal Court Rules and also to rule 3(1) which includes 3(1)(a).  He asks for the Court to order that the Application be dismissed as to the whole of the relief claimed in accordance with Order 35A rule 3(1)(a).  A Cantonese interpreter was asked to attend at the request of the applicant and that has occurred but the applicant has not appeared.  I do not intend to embark upon a hearing of the matter on the merits but I should say that I have had the advantage of reading the reasons for judgment of Barnes FM to which the application relates. 

8. In my opinion the application should be dismissed and the applicant should be ordered to pay the respondent Minister’s costs fixed in the sum of $1,300.00.

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

Associate:

Dated:        28 March 2008

The Applicant did not appear.
Solicitor for the Respondent:	P D Snell of Sparke Helmore
Date of Hearing:	28 February 2008
Date of Judgment:	28 February 2008