SZBSJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1497

FEDERAL COURT OF AUSTRALIA

SZBSJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1497

SZBSJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1446 of 2004

WHITLAM J
22 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1446 OF 2004

BETWEEN:	SZBSJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	22 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The requirement for service of notice under O 52 r 38(2) of the Federal Court Rules be dispensed with.
2. The appeal be dismissed for want of prosecution.
3. The appellant pay the respondent’s costs fixed in the amount of $200.

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 1446 OF 2004

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

JUDGE:	WHITLAM J
DATE:	22 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court in which Smith FM dismissed the appellant’s application under s 39B of the Judiciary Act 1903 for relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’): SZBSJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 672. The decision in question was handed down by the Tribunal on 14 October 2003. It affirmed a decision of the respondent’s delegate refusing to grant the appellant a protection visa.

2. When the appellant did not attend at the appointed time for the directions hearing (after the matter was twice called), the respondent asked that the appeal be dismissed.  Since the notice of appeal stated no grounds as required by O 52 r 13(2) of the Rules, I made an order that the appeal be dismissed for want of prosecution.

3. Later in the morning the appellant attended at the courtroom allocated for the directions hearing.  An interpreter was procured, and the appellant explained that he had been directed to the wrong courtroom by staff in the Registry.  I accepted this explanation.  After informing the appellant of what had taken place in his absence, the appellant was given the opportunity to make an application to revoke the order dismissing the appeal for want of prosecution.  The appellant said that the order should be revoked ‘because the RRT decision is not in favour of me so I just want against the decision of the RRT’ and because ‘I thought that RRT took a decision just before they hear me properly’. 

4. I need only consider the second of those reasons.  Smith FM said of that claim:

   ‘[the appellant] has repeated his complaint that he feels that the Tribunal made a decision too quickly.  He tells me that he went to the hearing, he answered the Tribunal's questions, he was told to wait 5 minutes, and then he was given a copy of the written decision.
   … the applicant has not been able to point to any evidence that the Tribunal had not kept its mind open in the course of the hearing it conducted.  In view of the extensive reasons that had been provided by the delegate, and the nature of the applicant's claims shown in the papers that he had filed in support of his original refugee application and his appeal, I think it was well open to a Tribunal familiar with the background circumstances of India to have felt able to arrive at a decision quickly at the conclusion of its hearing, and I am not prepared to find that the Tribunal had not kept an open mind.’

5. In circumstances where the appellant has filed a notice of appeal devoid of grounds of appeal, and where he has said nothing beyond the two sentences above as to why the order dismissing the appeal for want of prosecution should be revoked, I refuse to set aside that order. The appeal thus stands dismissed for want of prosecution.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             18 November 2004

The appellant appeared in person

Solicitor for the respondent:	Ms H D Dejean from the Australian Government Solicitor
Date of hearing:	22 October 2004
Date of judgment:	22 October 2004