FEDERAL COURT OF AUSTRALIA NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 155 PRACTICE & PROCEDURE – non-appearance by Applicant at directions hearings – dismissal of application pursuant to Order 10 rule 3 of the Federal Court Rules – notice of appeal – notice of objection to competency – notice of appeal treated as an application for an extension of time in which to seek leave to appeal – application dismissed Migration Act 1958 (Cth) Federal Court of Australia Act 1976 (Cth) s 24 Federal Court Rules O 10 r 3, O 35 r 7 NABE v MINISTER OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1273 OF 2002 EMMETT J 3 MARCH 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1273 OF 2002 BETWEEN: NABE APPLICANT AND: MINISTER OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 3 MARCH 2003 WHERE MADE: SYDNEY THE COURT: 1. directs that the notice of appeal filed on 2 December 2002 be treated as an application for an extension of time in which to seek leave to appeal from the judgment of Allsop J given on 11 November 2002; 2. orders that the application be dismissed; 3. orders that the Applicant pay the Respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1273 OF 2002 BETWEEN: NABE APPLICANT AND: MINISTER OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE: 3 MARCH 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The Applicant is a citizen of Bangladesh. He arrived in Australia on 29 December 1999 and applied for a protection visa under the Migration Act 1958 (Cth)on 9 February 2000. A delegate of the Respondent, the Minister of Immigration and Multicultural and Indigenous Affairs ("the Minister"), refused the application on 11 April 2000. The Applicant then applied to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision. On 3 September 2002, the Tribunal affirmed the delegate's decision. 2 The Applicant then applied to the Federal Court on 26 September 2002 for review of the decision of the Tribunal. That application was listed for directions on 17 October 2002 at which time there was no appearance by or on behalf of the Applicant. A further directions hearing was appointed for 29 October 2002. Again, there was no appearance for the Applicant. 3 The Minister then filed a notice of motion for summary dismissal of the application under O 10 r 3 of the Federal Court Rules. The matter came before Allsop J on 11 November 2002 when, for reasons that his Honour then gave, his Honour ordered that the application be dismissed pursuant to O 10 r 3. His Honour was satisfied that the records before him indicated that the Applicant had been served with the notice of motion on 31 October 2002 at the Applicant's last known address, being the address stated in the application. Before proceeding to dismiss the application pursuant to O 10 r 3, his Honour had the Applicant called three times outside the Court. The court officer also examined the public area on the floor. 4 On 2 December 2002, the Applicant filed a notice of appeal from the whole of the judgment of Allsop J given on 11 November 2002. On 21 February 2003, the Minister filed a notice of objection to competency of that purported appeal on the basis that the orders of Allsop J on 11 November 2002 were interlocutory and that leave to appeal is required under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth). No application has been made for an extension of time in which to seek leave to appeal. 5 When the matter came before me today, the Applicant appeared in person. He stated from the bar table that he was unaware of the three earlier occasions when the matter was fixed for directions and hearing before this court. He says that he moved house and that an acquaintance remained at that address but failed to inform him of the three days fixed for hearing. 6 After some discussion the Applicant indicated that he was prepared to have the notice of appeal treated as an application for an extension of time within which to seek leave to appeal. I intimated in the course of the discussion that, on the material before me, there did not appear to be any basis at all upon which it could be suggested that Allsop J had erred in taking the course that he did and that, accordingly, even if leave to appeal were granted, the appeal could not possibly exceed. For that reason, I would not be prepared to give any extension of time in which to file an application for leave to appeal nor would I grant leave to appeal. 7 I did indicate to the Applicant that a course that would be open to him would be to file a notice of motion for an order under O 35 r 7(2)(a), which provides that the Court may, if it thinks fit, set aside a judgment or order even after the order has been entered where the order has been made in the absence of a party. 8 That course would be open to the Applicant and, if supported by evidence indicating a good reason for his non-attendance on three earlier occasions, it would be within the power of Allsop J, or another judge hearing the motion, to set aside the orders made on 11 November 2002. I, of course, express no view at all as to whether or not such an application is likely to be successful. However, there is no time limit on the making of such an application. On the other hand, any delay in the making of such an application after the applicant became aware of a right to do so may well work against the exercise of discretion in favour of that applicant. 9 In the circumstances, it seems to me to be appropriate to treat the notice of appeal as an application for an extension of time in which to file an application for leave. For the reasons that I have indicated, I propose to dismiss the application. That should then dispose of the proceeding in its entirety. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 6 March 2003 Solicitor for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 3 March 2003 Date of Judgment: 3 March 2003