SZABC v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 853

FEDERAL COURT OF AUSTRALIA

SZABC v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 853

SZABC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 555 OF 2003

SACKVILLE J
SYDNEY
1 AUGUST 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 555 OF 2003

BETWEEN:	SZABC APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE  J
DATE OF ORDER:	1 AUGUST 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the 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	N 555 OF 2003

BETWEEN:	SZABC APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	1 AUGUST 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court. The Court dismissed an application pursuant to s 39B of the Judiciary Act 1903 (Cth) for relief in respect of a decision of the Refugee Review Tribunal (“RRT”) handed down on 2 October 2002. The Tribunal had affirmed a decision of a delegate of the respondent, (“the Minister”), not to grant the appellant a protection visa.

2. The appellant appeared without legal representation in the Federal Magistrates Court.  The sole ground identified in the notice of appeal to this Court is as follows:

   “The Magistrate erred in law in holding that the Refugee Review Tribunal did not err in failing to consider whether I have a well founded fear of persecution for reason of membership of a particular social group.”

3. Although directions were made for the appellant to file and serve written submissions in support of his appeal he has not done so.  When the matter was called today the appellant did not appear.  Mr Lloyd, on behalf of the Minister, has applied for an order dismissing the appeal by reason of the non-appearance of the appellant pursuant to Federal Court Rules O 52 r 38A(1)(c).  This rule is applicable because the proceedings are in the appellate jurisdiction of the Court.

4. The background to this appeal is as follows.  A directions hearing was held on 6 June 2003.  The appellant appeared at that time and was assisted by an interpreter.  The matter was set down for hearing at 2.15 pm on 25 July 2003.  Directions were made for the filing and service of written submissions.  The appellant was advised by a letter sent by registered post to his address for service on 12 June 2003, that the Chief Justice had determined that the appeal would be heard by a single judge.  The letter confirmed that the matter would proceed in accordance with the directions made by me on 6 June 2003 and accordingly would be heard on 25 July 2003 at 2.15 pm.

5. Thereafter, for reasons connected with the Court it proved necessary to change that hearing date until today, 1 August 2003.  On 19 June 2003, my associate telephoned the appellant at the mobile number provided by him and told him that the hearing date was to be changed from 25 July 2003 until 1 August 2003.  The appellant was advised that a letter would be sent confirming this.  A letter was in fact sent on 19 June 2003 by registered mail and there is evidence that the letter was received.  That letter advised the appellant that the appeal had now been set down for hearing on Friday, 1 August 2003 at 10.15 am.

6. There is nothing to indicate that the appellant arrived at the court for a hearing on 25 July 2003 or at any other time prior to today. 

7. In addition to the background that I have recounted, I should say that I have looked at the decision of the RRT and the reasons of the learned Magistrate. There is nothing to suggest, so far as I can discern, that the RRT committed a jurisdictional error such as to warrant relief being granted under s 39B of the Judiciary Act nor is there anything to indicate that the Magistrate erred in dismissing the application.

8. In these circumstances, it seems to me to be appropriate to dismiss the proceedings by reason of the non-appearance of the appellant.  Accordingly, I dismiss the appeal, with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             1 August 2003

There was no appearance for the appellant.

Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 August 2003
Date of Judgment:	1 August 2003