Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Applicant NAFR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1204 APPLICANT NAFR OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1203 OF 2004 STONE J 14 SEPTEMBER 2004 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 1203 OF 2004
BETWEEN: APPLICANT NAFR OF 2002
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: STONE J
DATE OF ORDER: 14 SEPTEMBER 2004
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs in the sum of $1,500. 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 N 1203 OF 2004
BETWEEN: APPLICANT NAFR OF 2002
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: STONE J
DATE: 14 SEPTEMBER 2004
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 This is an application for an extension of time within which to file and serve a notice of appeal from orders made by Federal Magistrate Raphael on 6 August 2002. On that day his Honour made consent orders dismissing an application for a review of a decision of the Refugee Review Tribunal handed down on 27 February 2002. The application for leave was filed on 6 August 2004, exactly two years after the Federal Magistrate's decision. 2 In an affidavit accompanying her application for an extension of time the applicant states that the solicitor on the record in the proceedings before the Federal Magistrate did not obtain her permission to discontinue the proceedings, nor did she instruct the solicitor to agree to the consent orders. This is a serious allegation and, if it has any substance, an application to set the orders of the Federal Magistrate aside should have been made as soon as possible after the applicant became aware of those orders. 3 On 20 August 2004 I made directions for the hearing of this application including that the applicant file and serve, by 7 September 2004, any documents on which she intended to rely in support of her application, written submissions in support of her application and a list of all relevant authorities. Order 3 of those orders stated that the matter was listed for hearing on 14 September. The application in this proceeding was filed by solicitors for the applicant and on the Court file is a copy of a letter sent to those solicitors advising them of the orders made on August 20. On 7 September the applicant filed a second affidavit in which she refers to her financial difficulties and to her difficulties in representing herself. She also states that she needs more time to obtain a transcript of the Tribunal hearing from her husband in Manila. The affidavit does not provide any explanation for her delay in seeking to set aside the orders made by the Federal Magistrate more than two years ago. 4 At the hearing today there was no appearance by the applicant or any legal representative for her. From her affidavit of 7 September it would seem that the applicant is now representing herself, although the solicitors who filed the application have not filed any notice of ceasing to act. In any event it is clear that the applicant was aware that the hearing was scheduled for today and the Court has received no explanation for her failure to appear. Ms Rayment, who appeared for the respondent, submitted that, in the circumstances, the matter should proceed in the absence of the applicant and I accepted this submission. 5 The applicant claims that she did not consent to the orders made by the Federal Magistrate. Annexed to her affidavit of 6 August is a handwritten note which says: 'T/A on client on 26/7/02. I advised client that his application is most likely to be dismissed by the Federal Court if the matter proceeds to a hearing. I advised he should withdraw from Federal Court. He said he'll think about it and call me back.'
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