SZKRO v Minister for Immigration and Citizenship

[2007] FCA 1796

FEDERAL COURT OF AUSTRALIA

SZKRO v Minister for Immigration and Citizenship [2007] FCA 1796

PRACTICE AND PROCEDURE – application for extension of time within which to file an application for leave to appeal – where non-attendance by applicant at the hearing of the application – whether the Federal Court Rules or the Federal Court Act provide the Court with power to dismiss such applications for non-attendance – where O 52 r 38A only relates to appeals – where s 25(2)(b) only relates to appeals – whether Court has an implied jurisdiction to dismiss such applications for non-attendance – application dismissed pursuant to O 35A r 3.

Federal Court of Australia Act 1976 (Cth) s 25(2)(b)
Federal Court Rules 1979 (Cth) O 52 r 38A, O 35A r 2

SZKRO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1750 OF 2007

LANDER J
16 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1750 OF 2007

BETWEEN:

SZKRO
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	16 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s application for extension of time within which to file an application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs fixed in the sum of $1,500.

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 1750 OF 2007

BETWEEN:

SZKRO
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE:	16 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant has filed an application for an extension of time in which to apply for leave to appeal from an order of a Federal Magistrate made on 6 August 2007.  The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 30 March 2007 and handed down on 24 April 2007.

2. The applicant filed an application in this Court for an extension of time on 30 August 2007.  Accompanying the application was an affidavit annexing a draft notice of appeal.  In the affidavit the applicant claims that the application is out of time because she did not know she could file an application for leave to appeal.  In the draft notice of appeal the applicant reasserts her factual claims and asserts that the Tribunal was not reasonable in its decision.

3. The Registrar gave directions in relation to this matter on 11 October 2007.  Relevantly, the Registrar directed:

   3.The applicant file and serve a draft notice of application setting out particularised grounds of application within ten (10) clear working days of the date of these directions (if not already filed).

   4.No later than five (5) clear working days before the hearing date the applicant file and serve full written submissions upon which the applicant seeks to rely in support of the application, and in support of any application were the Court to grant an extension of time and/or leave to application, so that the Court is able to assess in the application whether there is any utility in granting the extension of time and/or leave to application.

4. The applicant has not complied with either direction.  The matter was listed today for hearing at 11.00am.  The applicant did not appear at that time or at 11.36am when this matter was called.  The applicant was advised by the Registry of this Court on 11 October 2007 that her application was listed for hearing at 2.15pm on 16 November 2007.  On 16 October 2007 the applicant was advised that the time of the hearing had altered to 11.00am.  The letter which was sent to the applicant on 11 October 2007 was subsequently returned to the Court and received on 18 October 2007.  On its return, that letter was re-sent on 19 October 2007, but wrongly referred the applicant to the hearing time of 2.15pm.  This was the last correspondence sent to the applicant by the Court.

5. However, the first respondent provided the Court today with a copy of a letter sent to the applicant on 30 October 2007, which noted that the time was listed for hearing at 11.00am.  It follows, therefore, that the last notification received by the respondent was to the effect that she was advised that the correct time of the commencement of the hearing was 11.00am.  There was, as I say, no appearance by the applicant at 11.00am or at 11.36am when the matter was specifically called.  At that time, the respondent asked that the application be dismissed for the applicant’s non-attendance.  I thought, however, that having regard to the confusion it would be fair to the applicant that the matter be adjourned until 2.15pm in case she was under the misunderstanding that the hearing was to take place at that time.

6. Consequently, I adjourned the matter from this morning to this afternoon at 2.15pm. When the matter was called at 2.15pm, there was still no appearance by the applicant. The respondent made a further oral application to have the matter dismissed for the applicant’s non-attendance. Section 25 of the Federal Court of Australia Act 1976 (Cth) provides for the exercise of the Court’s appellate jurisdiction. Section 25(2) provides that a single judge or the Full Court can hear applications for leave or special leave to appeal to the Court or for an extension of time within which to institute an appeal to the Court.

7. Section 25(2)(b) empowers a single judge or the Full Court to, relevantly in paragraph (bb)(ii), make an order that an appeal to the Court be dismissed for the failure of the appellant to attend a hearing relating to the appeal. As can be seen, that section, of course, only relates to an appeal and not to an application for leave to appeal or to an application for an extension of time for leave to appeal. Order 52 rule 38A(1) of the Federal Court Rules 1979 (Cth) (the Rules)  provides that if a person is absent when an appeal is called on for hearing the Court may order that the hearing not proceed, adjourn the hearing, or proceed with the hearing either generally or in relation to any claim for relief in the appeal.

8. Order 52 rule 38A(2) provides that a party who has not appeared and has suffered an order under O 52 r 38A(1) may apply to the Court to set aside or vary any order made under O 52 r 38A(1).  Again, however, O 52 r 38A does not empower the Court to make any order in relation to an application for leave to appeal or an application for an extension of time for leave to appeal.  Applications for leave to appeal from the Federal Magistrates Court are governed by O 52 r 5, which provides that the application should be filed within 21 days.  The Rules are silent as to the Court’s power in relation to an application which has been brought in the Court but which is not prosecuted by the applicant by attending at the hearing of the application.

9. I would have thought that there is an implied jurisdiction in the Court to dismiss an application for leave to appeal or an application for an extension of time within which to apply for leave to appeal, where the applicant does not appear at the proceeding and I would have been prepared to make an order accordingly.  However, Mr White, who appeared for the respondent, directed my attention to O 35A of the Rules which provides for orders or judgments on default.  Order 35A rule 2 provides that an applicant is in default if the applicant fails to comply with an order of the Court or fails to prosecute the proceeding with due diligence.

10. He submitted that the applicant had failed to comply with an order of the Court, being a Registrar direction given on 11 October 2007 (O 35A r 2(1)(a)) and that he submitted that, in the alternative, the applicant’s failure to appear at the hearing establishes a failure to prosecute the proceeding with due diligence (O 35A r 2(1)(f)).  I think, with respect, that he is correct in his submission in both respects.  In those circumstances the Court, I think, has power under O 35A r 3(1)(a).  That empowers the Court to stay or dismiss the proceeding as to the whole or any part of the relief claimed.

11. The only relief claimed, of course, on an application for an extension of time is the following order that the applicant be granted an extension of time within which to apply for leave to appeal.  In my opinion, as the applicant has failed to comply with the direction made by the Registrar and failed to attend on the hearing today, it would be appropriate to make an order dismissing the whole of the proceeding.  There will be an order, therefore, that:

    1.The applicant’s application for extension of time within which to file an application for leave to appeal be dismissed.

    2.The applicant pay the respondent’s costs fixed in the sum of $1,500.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:        21 November 2007

Counsel for the Applicant:	The Applicant did not appear
Counsel for the First Respondent:	Mr R White
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	16 November 2007
Date of Judgment:	16 November 2007