AZABT v Minister for Immigration and Citizenship

[2012] FCA 532

FEDERAL COURT OF AUSTRALIA

AZABT v Minister for Immigration and Citizenship [2012] FCA 532

Citation:		AZABT v Minister for Immigration and Citizenship [2012] FCA 532
Appeal from:		AZABT v Minister for Immigration & Citizenship & Anor 2012 FMCA 196
Parties:		AZABT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		SAD 55 of 2012
Judge:		BESANKO J
Date of judgment:		25 May 2012
Dates of hearing:	9, 18 May 2012
Place:	Sydney (Heard in Adelaide)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the Appellant:	The Appellant did not appear
Counsel for the  First Respondent:	Mr P d’Assumpcao
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 55 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

AZABT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	18 MAY 2012
WHERE MADE:	SYDNEY (HEARD IN ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed

2.The appellant pay the first respondent’s costs to be taxed in default of agreement.        

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 55 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

AZABT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	25 MAY 2012
PLACE:	SYDNEY (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

1. This is an appeal from an order made by the Federal Magistrates Court on 16 February 2012. On that day the Court made an order dismissing the appellant’s application for judicial review in relation to a decision made by the Refugee Review Tribunal on 29 August 2011 (AZABT v Minister for Immigration & Citizenship & Anor [2012] FMCA 196).

2. The Tribunal had decided to affirm a decision by the delegate of the Minister not to grant the appellant a Protection (Class XA) visa.

3. In his application for judicial review the appellant claimed that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction.

4. The appellant’s notice of appeal to this Court is dated 6 March 2012 and contains the following grounds of appeal:

   The decision of the FMC is bias [sic] in that:

   1.        it failed to consider objectively all information;

   2.it was arbitrary in that it ignored information directly or indirectly relevant to the appellant’s circumstances.

5. The appeal was listed for hearing before this Court on 9 May 2012. The National Appeals Registrar sent a letter dated 3 April 2012 to the appellant at his address for service and the solicitor for the first respondent, advising them of the date fixed for the hearing of the appeal.

6. When the appeal came on for hearing on 9 May 2012 the appellant appeared in person. An interpreter in Mandarin was present. The first respondent was represented by a solicitor. The second respondent had previously filed a submitting appearance. The appellant asked me to adjourn the hearing of the appeal so that he could have further time to prepare his appeal. He said that he did not receive the letter dated 3 April 2012. He had, however, received a letter from this Court dated 7 May 2012 which dealt with the setting down fee but which had also referred to the hearing on 9 May 2012. I adjourned the hearing of the appeal to 18 May 2012 at 10.15 am. The appellant told me that he had made a note of the date and time.

7. The appellant did not appear at 10.15 am on 18 May 2012, nor did he contact either the Federal Court registry or my chambers prior to that time. I stood the matter down for a period of approximately 20 minutes. During that time a member of the registry attempted to contact the appellant on a mobile telephone number given on his application for judicial review to the Federal Magistrates Court. There was a recorded message to the effect that the telephone was turned off; a message was left for the appellant to the effect that his appeal was listed for hearing at that time. When I resumed at approximately 10.40 am there was still no appearance by the appellant. I decided to stand the matter down to 2.15 pm that afternoon. When the matter again came on at 2.15 pm, there was still no appearance by the appellant and he had made no attempt to contact the Court. The first respondent made an application under rule 36.75(1)(a) of the Federal Court Rules 2011 for an order that the appeal be dismissed. It seemed to me that the appellant had been given ample opportunity to appear or at least make some arrangements to explain his absence. In the circumstances I decided it was appropriate to order that the appeal be dismissed. I also made an order that the appellant pay the first respondent’s costs to be taxed in default of agreement.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:    

Dated:       25 May 2012