FEDERAL COURT OF AUSTRALIA

SZHRH v Minister for Immigration and Citizenship [2007] FCA 230

Federal Court Act 1976 (Cth) ss 25(2B)

Federal Court Rules O 35A r 2(1), O 35A r 3(1)(a)

SZHRH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1925 OF 2006

NICHOLSON J

20 FEBRUARY 2007

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The description of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

2.                  The application for extension of time within which to file and serve a notice of appeal be dismissed

3.                  The applicant pay the first respondent's costs of the application.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     On 3 October 2006 the applicant filed an application for extension of time to file and serve a notice of appeal.  That was accompanied by an affidavit.  By letter dated 13 December 2006 the National Appeals Registrar wrote to the applicant advising of the date, time and place of the hearing of the application.  On 19 December 2006 the solicitors for the first respondent wrote to the applicant, also advising the same particulars.  On 16 February 2007 the solicitors again wrote to the applicant and in the course of that letter again stated the date, time and location of the hearing of the application.  All of those communications were directed to the applicant at the address appearing on the record and on the application itself and the accompanying affidavit as the address for service of the applicant.

2                     Today there is no appearance by or for the applicant, I therefore find that this is a case where there has been a failure of the applicant to attend the hearing in support of the application.

3                     Section 25(2B) of the Federal Court Act 1976 (Cth) refers in subs (bb) to the position whereby the Court can dismiss an appeal for failure of an appellant to attend.  However, this is an application for extension of time, not an appeal.  Likewise, subs (ba) states that a single judge or Full Court may make an order that an appeal be dismissed for want of prosecution.  Again the application is not properly characterised as an appeal.

4                     However O 35A r 2(1) of the Federal Court Rules provides that ‘An applicant is in default if the applicant, among a variety of things, fails to prosecute the proceedings with due diligence’.  Order 35A r 3(1)(a) provides that ‘If an applicant is in default the Court may order that the proceeding be dismissed as to the whole or any part of the relief’.

5                     In my view, the requirements for the application of that rule are present here.  There is no applicant to make the case for the applicant, so that there is a failure to prosecute the proceeding with the required diligence at this hearing.  Additionally, and in any event independently of the rules, the applicant's case not being made results in the position that it cannot be made out and so must be dismissed for that reason.

6                     Therefore, I propose to make orders dismissing the application as a whole.

Associate:

Dated:         28 February 2007