SZADX v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 468

FEDERAL COURT OF AUSTRALIA

SZADX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 468

SZADX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 177 of 2003

SACKVILLE
12 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N177 OF 2003

BETWEEN:	SZADX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	12 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the Minister’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	N177 OF 2003

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

JUDGE:	SACKVILLE J
DATE:	12 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Driver, delivered on 21 February 2003.  Driver FM dismissed an application for review of a decision of the Refugee Review Tribunal (“RRT”) given on 16 October 2001. 

2. This was not the first application for review of the RRT’s decision.  The first application was dismissed by Finkelstein J on 7 February 2002.  An appeal to the Full Court was dismissed on 15 November 2002.  On each of those occasions the appellant was legally represented.  It appears that Driver FM dismissed the second application for review of the RRT’s decision by reason of the doctrine of res judicata or by reason of so-called Anshun estoppel. 

3. On 14 March 2003, I declined to grant the appellant an order restraining the Minister from removing him from this country: SZADX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 422. Thereafter, the appellant sought further orders from the Court. This application was determined by Madgwick J on 3 April 2003. His Honour made the following orders:

   “1.Insofar as the proceeding purports to be an application to appeal, or for leave to appeal, from the decision of Sackville J given on 14 March 2003 and refusing to stay the intended removal of the [appellant] from Australia by the respondent, the proceedings are incompetent.

   2.Insofar as the proceeding seeks, or in connection therewith it is sought, or in connection with the principle proceeding before Sackville J it is sought, to stay the respondent’s intended removal of the [appellant] from Australia today, the application is refused.”

4. I have been informed from the bar table that the appellant was in fact removed from Australia on 3 April 2003.  Not surprisingly, he did not appear when the appeal was called on for hearing.

5. An application has now been made by the Minister’s representative for an order under Federal Court Rules O 52 r 38A dismissing the appeal by reason of the non appearance of the appellant.  In the circumstances that I have outlined, it seems to me that that is the appropriate course.  Accordingly, the order that I make is that the appeal be dismissed pursuant to Federal Court Rules O 52 r 38A.

6. I order that the appellant pay the Minister’s costs of the proceedings.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Associate:

Dated:             12 May 2003

The applicant did not appear.

Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	12 May 2003
Date of Judgment:	12 May 2003