Chebat v Minister for Immigration and Citizenship

[2007] FCA 1222

FEDERAL COURT OF AUSTRALIA

Chebat v Minister for Immigration and Citizenship [2007] FCA 1222

TONY CHEBAT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 981 OF 2007

ALLSOP J
9 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 981 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

TONY CHEBAT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	9 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) the appeal be dismissed.

2.The appellant pay the first 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	NSD 981 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

TONY CHEBAT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE:	9 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter is an appeal from orders made by the Federal Magistrates Court on 11 May 2007 dismissing an application for review of a decision of the Migration Review Tribunal.  It is unnecessary for the reasons that will appear to deal with the facts of the matter. 

2. This appeal was set down for hearing by correspondence sent to the parties by a Registrar of the Court on 22 June 2007.  On the morning of Wednesday, 8 August  2007 my chambers received a facsimile from the appellant stating the following:

   Due to circumstances beyond my control, I will not be able to attend the hearing tomorrow 9/7/2007 [sic].

   I ask the Honourable judge to postpone my hearing.

   Please see attached medical certificate.

3. The attached medical certificate was a certificate from a dentist, Dr Eltenn who has a practice at Merrylands.  It appears that the appellant attended that practice from nearby Blacktown on 8 August 2007 and the dentist, Dr Eltenn, provided a “to whom it may concern” document concerning the appellant which contained the following:

   This is to certify that the above patient attended our practice for dental treatment on Wednesday, 8 August in pain and will require three days’ rest as he will be swollen and in pain due to a large abscess.

   Any queries please do not hesitate to contact our surgery.

4. I have taken this as an application for an adjournment.  The Minister opposes that application.  In all he circumstances, I do not think this is in any way a satisfactory way for the appellant to deal with this matter.  I have no real basis to conclude that the appellant could not have attended Court today.  The Minister has briefed counsel and attended Court with counsel. 

5. Having refused the adjournment, counsel has asked that I deal with the matter under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), which provides that a judge may make an order that an appeal be dismissed for failure of the appellant to attend a hearing relating to the appeal. In the circumstances, the grounds for the application of s 25(2B)(bb)(ii) have been satisfied and I propose to make an order dismissing the appeal and ordering that the appellant pay the first respondent’s costs.

6. If the appellant wishes to make an application setting aside these orders, that should be done by a notice of motion and affidavit setting out, in admissible form, the full statement of the reasons why the matter was dealt with in the way it was, and dealing with the question as to the terms which any order would be made setting aside the order that I have made today.  It should also be noted that the appellant has not filed any submissions in support of his appeal, notwithstanding directions to that effect, and if the matter came before me as to the setting aside of the order, I would need to be persuaded that there was any merit in the appeal.  To that end, I would need to be able to read written submissions as to the merits of the appeal. 

7. For those reasons I make the orders that I have identified.

8. Counsel has sought a fixing of a sum in costs.  He has indicated that the sum of $2,000 is sought, which practice and good sense would indicate is significantly less than the actual costs incurred by the respondent.  The likelihood is that that sum is a conservative estimate of party/party costs in the Federal Court in a proceeding such as this to bring an appeal.  My concern is that the application has not been flagged to the appellant.  In all the circumstances, I am only prepared to make an order that would be apparent on the papers prior to today.  Therefore I will not make a fixed sum order. 

9. However, it should be noted that if an application is made to set aside the orders that I have made today, and if I am otherwise minded to permit the appellant to have another occasion on which to argue his appeal, the term and condition of any such leave may conceivably be paying forthwith the costs thrown away of today’s exercise. That may or may not be the full party/party costs of today and that may depend upon the timeliness or not of any application if it be made to set aside today’s orders. Therefore, for those reasons, and on the basis of s 25(2B)(bb)(ii) I make the following orders

   1.the appeal be dismissed; and

   2.the appellant pay the first respondent’s costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:
Dated:        13 August 2007

No appearance by the Appellant.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 August 2007
Date of Judgment:	9 August 2007