SHLB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 144

FEDERAL COURT OF AUSTRALIA

SHLB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 144

SHLB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 810 of 2003

BRANSON, FINN AND FINKELSTEIN JJ
13 MAY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 810 of 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

BETWEEN:	SHLB APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	BRANSON, FINN AND FINKELSTEIN JJ
DATE OF ORDER:	13 MAY 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the respondent.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 810 of 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

BETWEEN:	SHLB APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	BRANSON, FINN AND FINKELSTEIN JJ
DATE:	13 MAY 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT

1. When this appeal was called on for hearing the appellant was absent.  Mr Tredrea, counsel for the respondent, has sought an order pursuant to O 52 r 38A of the Federal Court Rules that the appeal be dismissed with costs.

2. The Court considers it appropriate to make the order sought by Mr Tredrea.

3. There can be no doubt that the appellant was aware that his appeal was listed for hearing this morning.  The appellant has sent to the Court registry a standard form certificate of sickness for employment purposes.  The Court is aware that the appellant has been advised by a registry officer that if he wishes the hearing of his appeal to be adjourned he must attend the Court, or arrange for someone to attend on his behalf, to apply for and justify an adjournment.

4. Further, the order against which this appeal is brought is an order made by Selway J dismissing an application for judicial review of a decision of the Refugee Review Tribunal.  An application has already been made to Mansfield J for an order reinstating the application the subject of the order made by Selway J.  In considering that application, Mansfield J gave careful consideration to the grounds that the appellant relies upon for the purposes of this appeal.  Mansfield J concluded his consideration of the application before him by stating in SHLB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 254 at [32]-[33]:

   ‘Accordingly, I have come to the view that there is simply no arguable basis upon which it could be said that the Tribunal committed jurisdictional error in the conduct of its review.  By reason of that conclusion, I do not think there is any basis for reaching the view that, by virtue of the way in which the applicant’s claim came to be dismissed, any injustice was caused to him.  I think his claim, whether he had complied with the directions or not, was bound to fail.  There is nothing before me which indicates that there was any prospect at all of demonstrating jurisdictional error on the part of the Tribunal.

   In those circumstances, in my discretion, I decline to exercise the power (which I have assumed is available to me) to set aside the orders made on 3 October 2003 and to reinstate the application in the court. ….’

5. The appeal is dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Finn and Finkelstein.

Associate:

Dated:             26 May 2004

Counsel for the Appellant:	The Appellant did not appear.
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 May 2004
Date of Judgment:	13 May 2004