SZDTB v Refugee Review Tribunal

[2005] FCA 672

FEDERAL COURT OF AUSTRALIA

SZDTB v Refugee Review Tribunal [2005] FCA 672

SZDTB v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 348 of 2005

BRANSON J
27 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 348 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDTB
APPELLANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

20 MAY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed in reliance on s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

2.The appellant pay the second respondent’s costs fixed in the sum of $2400.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 348 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDTB
APPELLANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	BRANSON J
DATE:	27 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 20 May 2005 I acceded to a request made by counsel for the second respondent to dismiss this appeal from a judgment of the Federal Magistrates Court pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’). That subparagraph authorises a judge to make an order that an appeal be dismissed for failure of the appellant to attend a hearing relating to the appeal. These are short reasons for my decision to order that the appeal be dismissed.

2. This appeal was listed for hearing on 20 May 2005.  The appellant did not attend the hearing.  I consider that a hearing of an appeal is ‘a hearing relating to the appeal’ within the meaning of s 25(2B)(bb)(ii) of the Act.

3. I was satisfied that the appellant had due notice that his appeal was listed for hearing on 20 May 2005.  He was present in Court on 7 April 2005 when I listed his appeal for hearing on that date.  Further he has corresponded with the Court and the respondents’ legal representatives in terms that disclose his awareness of the fact that his appeal was listed for hearing on 20 May 2005.

4. On 7 April 2005 I made certain orders intended to facilitate the orderly hearing of this appeal. One of those orders gave the appellant leave to file and serve an amended notice of appeal by 28 April 2005. The notice of appeal filed by the appellant was drawn in confusing terms and failed to pay any significant regard to the reasons for judgment of the Federal Magistrate. Another of the orders that I made on 7 April 2005 required the appellant to file and serve a written outline of submissions five working days prior to the hearing. The appellant did not file an amended notice of appeal. Nor did he comply with the order requiring him to file an outline of submissions. It was open to the second respondent to invite the Court to make an order that the appeal be dismissed for failure to comply with a direction of the Court (s 25(2B)(bb)(i) of the Act).

5. On 28 April 2005 the appellant sent a letter to the Court by facsimile transmission in the following terms:

   ‘I am the Appellant in the above matter which has been set down for hearing on 20 May 2005.

   I am not represented by a solicitor or a barrister and wish to make no representations other than what was put to the Federal Magistrate in the Court below. I say that the arguments advanced on my behalf to the court were correct and that appeal should be allowed.

   I do not wish to file any amended appeal.’

   He wrote in similar terms to the solicitor for the second respondent.

6. The judgment of the Federal Magistrates Court was delivered ex tempore by Mowbray FM.  His Honour dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  His Honour could identify no legal error going to jurisdiction in the decision of the Tribunal, which was made after the appellant declined to attend a Tribunal hearing to which he had been invited.  The judgment of the Federal Magistrates Court is affected by no obvious error.

7. In the above circumstances I considered it appropriate to make the order sought by the second respondent and to order the appellant to pay the second respondent’s costs fixed in the sum of $2400.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             27 May 2005

Counsel for the Appellant:	The Appellant did not appear
Counsel for the Second Respondent:	J Potts
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	20 May 2005
Date of Judgment:	20 May 2005