THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1                     This is an appeal against the decision of a Federal Magistrate.  The time is now 10.40 am.  The matter was listed for hearing at 10.15 am.  The appellant is not present.  The notice of appeal which was filed by the appellant contains the appellant’s address for service.

2                     On 7 December 2007, the Court wrote to the appellant at his address for service informing him of the location for the hearing of this appeal as Queens Square.  On 18 January 2008, however, the Court wrote a second letter advising the appellant of a change of location to this Court at 80 William Street, stating the starting time to be 10.15 am on 26 February 2008.  On 1 February 2008, the solicitors for the first respondent wrote to the appellant at his address for service stating that the matter was listed for hearing on 26 February 2008 at 10.15 am in this Court at 80 William Street, Sydney, and stating further that if the appellant did not attend the hearing the first respondent would seek an order that the appeal be dismissed with costs.

3                     The Court has power under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) to dismiss an appeal where an appellant fails to attend the appeal.

4                     I dismiss this appeal on two grounds.  First, on the basis of the statutory power to which I have just referred.  Secondly, I also dismiss the appeal on its merits, for the following reasons.

5                     Before the Federal Magistrate, the appellant claimed that the Refugee Review Tribunal (the Tribunal) had made a jurisdictional error because it had failed to extend the time for the appellant to respond to a letter issued under s 424A of the Migration Act 1958 (Cth) (the Act), which the Tribunal had sent to the appellant.  Secondly, the appellant claimed that the Tribunal had breached s 425 of the Act by denying the appellant the opportunity to appear before the Tribunal.  The Federal Magistrate dismissed the appellant’s application for a judicial review.

6                     In the notice of appeal, the appellant has restated the grounds that were before the Federal Magistrate.  I construe those grounds of appeal as a contention that the Federal Magistrate erred in rejecting the two grounds of review which were relied upon by the appellant.

7                     As to the first ground of appeal, in my view the Federal Magistrate did not err.  There was no obligation on the Tribunal to extend the period of time in which the appellant had to respond.  Under s 424B(4) of the Act, the Tribunal has a discretion whether to extend time, and the question is, therefore, whether the Tribunal’s discretion in refusing to grant an extension of time miscarried.  The letter written by the appellant requesting an extension of time was written on the last day for compliance with the Tribunal’s time limit.  The conditions relied upon by the appellant for an extension of time were an inability to understand English and the fact that the application form had originally been completed by someone else.  These are circumstances which prevailed on the date of the receipt of the Tribunal’s letter.  There had, therefore, been ample time for the appellant to apply for an extension of time before the last day of the period for compliance.

8                     In my view, the Tribunal was entitled, in the exercise of its discretion, to ground its decision on this consideration, and in so doing the discretion did not miscarry.  In any event, the appellant was given the opportunity to provide evidence and submissions by the Tribunal, notwithstanding that it did not give the appellant a formal extension of time.  The appellant failed to take up that offer.

9                     As to the second ground of appeal, the Federal Magistrate did not err in the construction which he gave to s 425 of the Act.  There was no obligation on the Tribunal to invite the appellant to a hearing once the appellant had failed to comply with s 424C(2) of the Act.

10                  Accordingly, the appeal is dismissed with costs.

Associate:

Dated:         20 March 2008