FEDERAL COURT OF AUSTRALIA

NBHC v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 727

NBHC v Minister for Immigration & Multicultural &

Indigenous Affairs

NSD 661 OF 2005

LINDGREN J

25 MAY 2005

SYDNEY

THE COURT ORDERS THAT:

1.           The application for an extension of time in which to seek leave to appeal be refused.

2.           The applicant pay the respondent's costs.

3.           For the purposes of order (2), the respondent’s costs be fixed in the sum of $1000.

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

REASONS FOR JUDGMENT

1                     The applicant applies for an extension of time in which to seek leave to appeal and, if it is granted, for leave to appeal, from a judgment of Barnes FM in the Federal Magistrates Court of Australia (‘FMCA’) delivered on 2 March 2005. 

2                     The applicant did not appear today when the matter was called. 

3                     On 17 May 2005, the Court Registry wrote to the applicant at the address for service which she gave on her application advising her that the proceeding was fixed for hearing today at 2.15 pm.  In addition, the solicitors for the respondent Minister wrote to the applicant at the same address on 23 May 2005 confirming the hearing fixture for today at 2.15 pm and enclosing a copy of the respondent's submissions.

4                     I am satisfied that the applicant knew of the hearing date today.
The hearing has proceeded in her absence. 

5                     The application is supported by an affidavit of the applicant sworn 29 April 2005, being the date of the filing of the application.  The affidavit states as follows:

‘[NBHC] humbly request the Honourable Court to reconsider my case as I feel mine is not an isolated case.  I wish to state till date, my family back in Fiji along with my son are living in constant fear.  With the permission of the Court, I would like to provide more evidence.  I was not in a position to do so before, I was being ill treated by my aunt whom I was living.  She even tore all my mails and never informed me.

Things started to get well in my life, the day I started living with [name of a person] at the present address.  He has been treating me with respect and dignity after he found out mine was a genuine suffering.

I am extremely sorry for submitting this application late because I am still undergoing physio after my motor accident.  I have to depend on [name of same person] to submit this application.  I request the Honourable Court to give a fair decision taking into all facts and truth.’

6                     In the draft notice of appeal which accompanied the application, the order sought is stated as follows:

‘To give me a favourable decision from the Honourable Court and the Honourable Judge which will enable me to lead a decent and dignified [sic - life] in Australia.’

7                     Ms J Bautista of Sparke Helmore, who appears for the respondent Minister, has assisted, not only with written submissions, but also with a chronology. 

8                     The applicant arrived in Australia on 30 September 2001.  She is a citizen of Fiji of Indian ethnicity.  On 29 October 2001 she lodged an application for a protection visa.  Her application was supported by a statement by her Migration Agent which sets out the facts on which she relied. 

9                     On 3 January 2002 a delegate of the respondent refused the application.  On 1 February 2002 the applicant applied to the Refugee Review Tribunal (‘RRT’) for a review of the delegate’s decision.  The Tribunal affirmed the delegate’s decision on 9 May 2003 and handed down its decision and reasons on 3 June 2003. 

10                  On 7 June 2004 the applicant lodged in this Court an application for judicial review of the Tribunal’s decision.  On 28 June 2004 the application came before a Deputy Registrar who directed that the applicant file and serve an amended and fully particularised application together with an affidavit in support and any evidence on which she proposed to rely on or before 26 October 2004. 

11                  On 5 July 2004 the respondent filed and served a notice of objection to competency. 

12                  On 6 July 2004 Hely J transferred the application to the FMCA.  The applicant did not file an amended application or affidavit by 26 October 2004.  On 19 November 2004 the solicitors for the respondent wrote to the applicant about her failure to comply with the order made on 28 June 2004.

13                  There was a ‘non-compliance’ listing before Barnes FM on 14 December 2004 at which the applicant did not appear, and her application was dismissed for her non-attendance.  On 15 December 2004 the solicitors for the respondent wrote to the applicant notifying her of that order, but on 20 December 2004 the letter was returned marked ‘Return to sender’. 

14                  On 1 February 2005 the applicant filed a notice of a change of address for service in the FMCA and on 2 February 2005 she filed an application to set aside the order of dismissal.  That application to set aside was scheduled for hearing on 2 March 2005 when Federal Magistrate Barnes dismissed the application. 

15                  By seeking an extension of time in which to apply for leave to appeal, and, if the extension is granted, leave to appeal, the applicant proceeds on the basis that the FMCA dismissal of her application to set aside was ‘interlocutory’.  Ms Bautista does not suggest to the contrary.

16                  If the FMCA decision was ‘final’, the applicant would have had a right to appeal to this Court within 21 days (Federal Court Rules, O 52 r 15(1)(a)) that is say, by 23 March 2005.  But the applicant did not approach this Court until 37 days later – on 29 April 2005, and so would have needed an extension of time under O 52 r 15(2).  The application for an extension of time would have failed if the applicant had not established that ‘special reasons’ favoured the granting of the extension.  The applicant would have had to explain her delay and demonstrated that the FMCA decision was attended by sufficient doubt to warrant appellate attention.

17                  On the other hand, on the basis  that the FMCA decision to dismiss the application to set aside was interlocutory, there is again an implied time limit of 21 days in which to apply for leave to appeal (SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543), and the applicant must again satisfactorily explain her delay and show that the decision of Barnes FM was attended by sufficient doubt as to warrant appellate attention.

18                  Enough has been said to suggest a general lack of interest on the part of the applicant in pursuing the proceeding in the FMCA, and, apparently, now in this Court also.  However, I have read the reasons for the decision of the RRT and there is no obvious jurisdictional error to be seen in them.  As was observed by the Tribunal, the applicant’s complaints about life in Fiji for a person of Indian ethnicity are made in very general terms.  There is a particular complaint about trouble the applicant suffered because of her rejection of a Fijian man, but any problem that she had with him or his family is not related to a Convention ground.

19                  An appeal would have no prospects of success.  For this reason, neither would an application for leave to appeal. 

20                  For the same reason, neither does the application for an extension of time within which to seek leave to appeal.  The application should be dismissed with costs.

Associate:

Dated:              10 June 2005