FEDERAL COURT OF AUSTRALIA SZOAK v Minister for Immigration and Citizenship [2010] FCA 489 Citation: SZOAK v Minister for Immigration and Citizenship [2010] FCA 489 Appeal from: SZOAK v Minister for Immigration & Anor [2010] FMCA 104 Parties: SZOAK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 345 of 2010 Judge: KATZMANN J Date of judgment: 21 May 2010 Legislation: Federal Court of Australia Act 1976 (Cth), ss 25(2), 25(2B)(bb)(ii), 25(2BA) Federal Court Rules O 35A r 2(1)(f), O 35A r 3(1)(a) Date of hearing: 17 May 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 13 No appearance for the applicant Solicitor for the First Respondent: Sparke Helmore IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 345 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOAK Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE OF ORDER: 17 MAY 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for extension of time within which to file and serve a notice of appeal is dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) or alternatively O 35A rr 2(1)(f) and 3(1)(a) of the Federal Court Rules. 2. The applicant pay the first respondent's costs fixed at $1,614. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 345 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOAK Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE: 21 MAY 2010 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a Chinese national who claims to be a Falun Gong practitioner. He sought asylum in this country after jumping ship in Australian waters. He applied to the Minister for, but was denied, a protection (class XA) visa. He failed to have the decision set aside on a merits review by the Refugee Review Tribunal and his appeal to the Federal Magistrates Court from that decision was also unsuccessful. He missed the deadline to appeal to this Court and now seeks an extension of time to file an appeal. The Minister opposes the application. 2 His appeal was listed for hearing at 10.15 am on 17 May 2010. On the application of the Minister I dismissed his application. These are my reasons for so doing. 3 At 10.15 am and 15 minutes later when the matter was called outside the Court, the applicant failed to appear. Yet, he was notified of the time, date and place of the hearing by letter from the Court on 20 April 2010 sent to the postal address for service included in his application and his draft notice of appeal. He was also sent a copy of the Minister's submissions at the same address and in that letter again reminded of the date, time and place of the hearing. Each letter informed him that orders could be made in his absence including an order as to costs. The letter from the Minister's solicitor foreshadowed an application to dismiss the matter if he did not attend. 4 Mr White, who appeared for the Minister, argued that the power to dismiss for non-appearance was contained in O 35A r 3(1)(a) of the Federal Court Rules (the Rules), as the applicant had failed to prosecute the proceeding with due diligence: O 35A r 2(1)(f). He submitted that s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) (the Act) was inapplicable as this was an application for leave to appeal, rather than an appeal. Section 25(2B)(bb) provides: A single Judge (sitting in Chambers or in open court) or a Full Court may: (bb) make an order that an appeal to the Court be dismissed for: (i) … (ii) failure of the appellant to attend a hearing relating to the appeal. 5 In its ordinary English meaning "relating to" means linked to or connected with, so that a hearing "relating to the appeal" means a hearing linked to or connected with it. There could be no doubt that an application for leave to extend the time in which to appeal is linked to or connected with and therefore related to the appeal. 6 In any event, subs (2BA) of s 25 provides that a reference to an appeal in subs (2B) includes a reference to an application of the kind mentioned in subs (2). Subsection (2) mentions applications (amongst other things) for an extension of time within which to institute an appeal to the Court as applications which, as a rule, must be heard and determined by a single Judge. 7 Thus, the failure of the applicant to attend this hearing can be said to be a failure of an appellant to attend a hearing relating to the appeal within the meaning of s 25(2B)(bb). 8 Although the order the Minister seeks is an order dismissing the application, not an order dismissing the appeal, and the appeal is not on foot, the effect of subs (2B) is to enable the Court to make an order that an application to extend the time in which to file an appeal be dismissed for failure of the applicant to appear at the hearing. 9 Alternatively, O 35A r 3(1)(a) empowers the Court to make an order dismissing a proceeding as to the whole or any part of the relief claimed if an applicant is in default. Order 35A r 2(1)(f) provides that for the purpose of O 35A, an applicant is in default if the applicant fails to prosecute the proceeding with due diligence. Failing, without explanation or excuse, to attend the proceeding when it is listed for hearing is a failure to prosecute it with due diligence. 10 In either event, the Court plainly has the power to dismiss for non-appearance. 11 The Minister sought costs in a fixed sum of $1,614. His application was supported by an affidavit of Mr White, who deposed that the actual costs were higher than this and the amount sought was equal to the scheduled sum to which the Minister would be entitled under the Rules. I am satisfied that it is appropriate to make that order. Orders 12 I therefore order that: (1) The application for extension of time within which to file and serve a notice of appeal is dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) or alternatively O 35A rr 2(1)(f) and 3(1)(a) of the Federal Court Rules. (2) The applicant pay the first respondent's costs fixed at $1,614. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate: Dated: 21 May 2010