S1366 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 702

FEDERAL COURT OF AUSTRALIA

S1366 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 702

S1366 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 479 OF 2005

MOORE J
26 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 479 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	S1366 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	26 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent's costs of the appeal.

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 479 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	S1366 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	26 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate of 11 March 2005.  The matter was fixed for hearing this afternoon.  The appellant was aware that the matter was fixed for hearing this afternoon.  A person rang my chambers in the middle of the morning today and identified himself as the appellant and indicated he was ill and had been fainting.  He was informed that the matter was fixed for hearing at 2.15 this afternoon and that it would be necessary for him to make an application for an adjournment.

2. The matter has been called and there is no appearance for the appellant.  Counsel for the Minister for Immigration and Multicultural and Indigenous Affairs applies to have the appeal dismissed on the basis that the appellant has not appeared.  I have power to do so.  I am satisfied in this case it is appropriate that I do so. 

3. Nothing of substance has been put to the Court other than what I have just recounted about the telephone conversation concerning the circumstances of the appellant.  Moreover, I have read the decision of the Refugee Review Tribunal ('the Tribunal') and the decision of the Federal Magistrate.  It appears to me that the appellant has no case of substance to agitate in this appeal.  I say that because the Tribunal dealt with the appellant's application on the basis that it did not accept a crucial aspect of the appellant's account of his earlier experiences.  It seems to me in those circumstances there is very little prospect of the appellant succeeding in this appeal because the Federal Magistrate likewise proceeded on the basis that none of the contentions of the appellant revealed jurisdictional error.  I should add that the application heard and determined by the Federal Magistrate followed earlier litigation in this Court by the appellant.

4. If it transpires there is a case of substance and some valid and substantiated explanation for the non-appearance of the appellant, then he has a remedy to seek to have the order I am about to make, set aside.  I propose to dismiss the appeal and order that the appellant pay the respondent's costs of the appeal. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             2 June 2005

The Appellant did not appear
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 May 2005
Date of Judgment:	26 May 2005