SZDTC v Refugee Review Tribunal

[2005] FCA 782

FEDERAL COURT OF AUSTRALIA

SZDTC v Refugee Review Tribunal [2005] FCA 782

SZDTC v REFUGEE REVIEW TRIBUNAL & ANOR

NSD470 OF 2005

EMMETT J
26 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD470 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDTC
APPELLANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

26 MAY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        the appeal be dismissed;

2.        the appellant pay the costs of the second respondent in the sum of $2000.

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	NSD470 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDTC
APPELLANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	26 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India, who last arrived in Australia on 12 January 1999 on a multiple entry student visa.  On 15 March 2000, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth). On 1 May 2000, a delegate of the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 25 May 2000, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision. On 17 November 2000, the Tribunal affirmed the decision not to grant a protection visa. There does not appear to be any evidence as to what happened between that time and 3 June 2004, when the appellant filed an application to the Federal Magistrates Court seeking Constitutional writ relief in respect of the decision of the Tribunal. On 21 February 2005, Mowbray FM ordered that the proceeding be dismissed and ordered the appellant to pay the Minister’s costs in the sum of $4,000. On 9 March 2005, the appellant filed a notice of appeal to this Court from the orders of Mowbray FM.

2. The matter came before me for directions on 13 April 2004, when Mr Patel of counsel appeared for the appellant.  Mr Patel informed the Court that he had no further instructions to represent the appellant.  On that day I listed the matter for hearing today and requiring written submissions to be filed five days prior to the hearing.  On the same day, the solicitor for the Minister wrote to the appellant, enclosing a copy of the directions that I made on that day.  In the solicitor’s letter, the appellant was informed unequivocally that, if he failed to appear at the hearing, orders would be sought that the appeal be dismissed with costs.

3. On 29 April 2005, a facsimile communication was received by the Court purporting to come from the appellant.  The communication said:

   ‘I advise and confirm that I have no legal representations and I have personal conduct of this matter myself.  I confirm Mr Patel only had instructions to seek only directions and has no authority or instructions to represent me at the hearing. 

   I do not require interpreter and I do not wish to amend the appeal.’

4. When the matter was called on for hearing today there was no appearance for the appellant.  The Minister, therefore, moved, pursuant to s 25(2B)(bb)(ii), for dismissal of the appeal.  That section provides that a single judge or a Full Court may make an order that an appeal to the Court be dismissed for failure of the appellant to attend a hearing relating to the appeal.

5. The reasons of the Tribunal, which are before the Court, indicate that the appellant had been put on notice by the Tribunal that it was unable to make a favourable decision on the information before it.  Notwithstanding that, the appellant did not provide any further information in support of his claims; nor did he give the Tribunal the opportunity to explore aspects of his claims with him.

6. The Tribunal considered, therefore, that relevant questions were left unanswered.  On the evidence before it, the Tribunal was unable to be satisfied that the appellant had a well founded fear of persecution for reason of his religion or actual or imputed political opinion, as he claimed, or for any other Convention related reason, if he were to return to India now or in the foreseeable future.

7. Mowbray FM, in his reasons for dismissing the appellant’s application, dealt with each of the grounds set out in the amended application to the Federal Magistrates Court.  There is nothing in the reasons of Mowbray FM that indicates any error.  In the circumstances, I propose to accede to the Minister’s application.

8. The Minister also asks for an order pursuant to O 62 r 42(c) which provides that where the Court orders that costs be paid to any person, the Court may further order that, as to the whole or any part of the costs specified in the order, instead of taxed costs the person should be entitled to a gross sum specified in the order.

9. In the interests of saving costs, it appears to me desirable to make such an order.  The Minister has asked for costs in the sum of $2,000, which seems to be me to be a reasonable figure in the circumstances. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            10 June 2005

No appearance for the Appellant
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 May 2005
Date of Judgment:	26 May 2005