SZDKS v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 847

FEDERAL COURT OF AUSTRALIA

SZDKS v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 847

SZDKS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD1699 OF 2004

BENNETT J
31 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1699 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDKS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	31 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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	NSD1699 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BENNETT J
DATE:	31 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By notice of appeal in this matter, which was filed on 18 November 2004, the appellant set out the grounds of appeal from a judgment of Federal Magistrate Lloyd-Jones on 29 October 2004.  There was a single ground specified:

   ‘A writ of mandamus second respondent (Tribunal) Re determine the application for a protection visa in accordance with Law such further or other orders as to the court seen fit.’

2. At a directions hearing on 17 February 2005 the appellant appeared in person, assisted by an interpreter.  It was explained to him that his notice of appeal was inadequate and that he should file an amended notice of appeal.  On that occasion, orders were made by consent.  These included the order:

   ‘The appellants file and serve an amended notice of appeal and a written outline of submissions five working days prior to the hearing.’

3. The appellant has not complied with that order.  Today the appellant appears in person, again assisted by an interpreter.  When asked why he had not complied with the order, the appellant said, from the bar table, that a person variously described as a solicitor, a close friend, and a migration agent, had assured him that he would file the necessary documents, but that that person had gone to Fiji last week.  There was no evidence setting out those assertions. 

4. In any event, even if I were to take that as evidence, that does not provide sufficient explanation as to why nothing was done from 17 February, or why the appellant did not notify the respondent or the court of those circumstances.  When I asked the appellant what he expected to happen today, as the matter was listed for hearing, he said nothing.  When I asked the appellant what was the basis for his appeal, he said that the Tribunal did not understand properly the reasons he advanced for seeking a protection visa.  He gave no other details.

5. When I asked him if he had read or had translated for him the Federal Magistrate’s decision, he answered in the negative. This is the appellant’s appeal. It is for him to advance the basis of that appeal. He has been given the opportunity to do so and has not done it. Mr Markus, who appears for the respondent, submits that this is an appropriate case for an order under section 25(2)(b)(i) of the Federal Court of Australia Act 1976 (Cth).

6. It is not in dispute that the appellant has failed to comply with the direction of the court.  No sufficient reason has been given for that failure.  I propose to make that order. 

7. The order of the court is that the appeal is dismissed for failure to comply with the direction of the court.

8. I order the appellant to pay the respondent’s costs.

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

Associate:

Dated:             22 June 2005

The applicant appeared in person assisted by an interpreter.

Counsel for the Respondent:	A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 May 2005
Date of Judgment:	31 May 2005