FEDERAL COURT OF AUSTRALIA
Tan v Minister for Immigration and Border Protection [2018] FCA 135
Appeal from: Application for extension of time and leave to appeal: Tan v Minister for Immigration & Anor [2017] FCCA 1983 File number: NSD 1324 of 2017 Judge: BROMBERG J Date of judgment: 16 February 2018 Catchwords: PRACTICE AND PROCEDURE – dismissal of application for extension of time and leave to appeal for non-appearance Legislation: Federal Court Rules 2011 (Cth), r 35.33 Cases cited: Tan v Minister for Immigration and Anor [2017] FCCA 1983 Date of hearing: 16 February 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 3 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Ms E Warner Knight of Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting appearance, save as to costs ORDERS
NSD 1324 of 2017 BETWEEN: SWEE TEIK TAN
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
16 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The applicant’s application for extension of time and leave to appeal dated 4 August 2017 is dismissed.
2.The applicant pay the first respondent’s costs of that application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
This is an application for an extension of time and leave to appeal from the judgment of the Federal Circuit Court given on 17 July 2017 and published as Tan v Minister for Immigration and Anor [2017] FCCA 1983.
When the matter was called on for hearing this afternoon, there was no attendance by the applicant. An attempt was made to contact the applicant by telephone, but that attempt was unsuccessful. I am satisfied on the basis of an affidavit of Ms Warner Knight relied upon by the first respondent that the applicant has been made aware that the hearing was listed for 3.15pm this afternoon. It seems evident also from the content of that affidavit that on 24 January 2018, the applicant left Australia.
The first respondent has made an application that, pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), the applicant’s application be dismissed on the basis of the applicant’s absence. I will make that order.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 21 February 2018
- AGLC
- Tan v Minister for Immigration and Border Protection [2018] FCA 135
- Case
- [2018] FCA 135
- Decision Date
CaseChat Overview and Summary
The court considered several key legal issues, including whether the failure to appear constituted a breach of procedural fairness, and if the delay in filing the application could be justified under any relevant legal principles. Additionally, the court had to assess whether the dismissal of the application for an extension of time and leave to appeal was appropriate under the circumstances, particularly given the importance of adherence to procedural rules in immigration matters. The court also examined the costs associated with the application and whether imposing costs on the applicant was warranted.
In reaching its decision, the court determined that the procedural rules were clearly breached by the applicant's non-appearance and the late filing of the application. The court held that the applicant had not provided sufficient justification for the delay, and therefore, the application for an extension of time and leave to appeal was properly dismissed. Furthermore, the court found that the imposition of costs on the applicant was justified due to the procedural lapses. Consequently, the court dismissed the application and ordered the applicant to pay the costs of the application. The orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The applicant’s application for extension of time and leave to appeal dated 4 August 2017 is dismissed.
2. The applicant pay the first respondent’s costs of that application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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