FEDERAL COURT OF AUSTRALIA

NBIH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 22

MIGRATION – appeal – appellant left Australia before hearing of appeal – appeal dismissed for want of prosecution

Federal Court of Australia Act 1976 (Cth) ss 25(2B)(ba) and 25(2B)(bb)(i)

Federal Court Rules O 52 r 38(1)(a)

NBIH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD1341 of 2004

WEINBERG, JACOBSON & LANDER JJ

21 FEBRUARY 2005

SYDNEY

THE COURT ORDERS THAT:

1.      The appeal to the Court be dismissed for want of prosecution pursuant to s 25(2B)(ba) of the Federal Court of Australia Act 1976 (Cth) and O 52 r 38(1)(a) of the Federal Court Rules. 

2.      The appellant pay the respondent's cost of the appeal, and of the notice of motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a judgment of Emmett J given on 7 September 2004.  His Honour ordered summary dismissal of an application commenced on 13 July 2004 seeking orders under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal given on 30 July 2002.  His Honour found that the application was completely without substance, frivolous, and disclosed no cause of action. 

2                     On 14 September 2004, undaunted by those findings, the appellant filed a notice of appeal that contained a number of grounds, some of which were barely intelligible.  On 3 December 2004, Sackville J ordered that the appellant file and serve an outline of submissions in support of the grounds of appeal on or before 7 February 2005.  Perhaps it was not altogether surprising that the appellant did not do so.  His failure to comply with directions apparently alerted the respondent to the fact that the appellant had left Australia on 3 December 2004, coincidentally the same day that Sackville J gave directions in this matter.

3                     On 17 February 2005, the respondent filed a notice of motion seeking to have the proceedings dismissed.  The respondent invoked ss 25(2B)(ba) and 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) or, in the alternative, O 52 r 38(1)(a) of the Federal Court Rules.  The motion was supported by an affidavit affirmed by Ms Susan Goodman, a solicitor who had the carriage of this matter on behalf of the respondent.  Ms Goodman exhibited to her affidavit a computer printout that recorded the appellant's movements into and out of Australia.  That printout showed that the appellant left Australia on 3 December 2004.  There was no entry to indicate that he had re-entered the country after that time.

4                     In the circumstances, we consider it appropriate to make orders substantially in the terms sought by the respondent. 

Associate:

Dated:              23 February 2005