SZDTX v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1750

FEDERAL COURT OF AUSTRALIA

SZDTX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1750

MIGRATION – appeal from Federal Magistrates Court – no error of law or principle

SZDTX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1461 OF 2005

TAMBERLIN J
SYDNEY
21 NOVEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1461 OF 2005

BETWEEN:	SZDTX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	21 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with 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	NSD 1461 OF 2005

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

JUDGE:	TAMBERLIN J
DATE:	21 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by way of notice of motion to set aside an order made by me on 3 November 2005 dismissing an appeal for want of appearance by the appellant at the final hearing.  The notice of motion also seeks orders that the decision of the Federal Magistrate delivered on 5 August 2005 be set aside and that the decision of the Refugee Review Tribunal made on 11 May 2004 be set aside and quashed.

2. The affidavit in support is dated 7 November 2005 and one of the appellants states that the hearing of the matter was scheduled for 3 November 2005 but that he was sick on the hearing day and was not able to make the journey from Griffith to Sydney.  He therefore missed the opportunity to argue his case.  He says that he needs another opportunity for him to be able to argue the matter.

3. When the matter came on before me this morning, I asked the appellant for an explanation as to the reason he was not present at the hearing although he had been fully informed of the hearing date and was well aware that the hearing was scheduled for 3 November 2005.  The appellant did not send any medical certificate to the Court.  The appellant simply says that he was sick and could not come to the hearing.

4. Even if I accept that the appellant was sick on the day of the hearing, it would only be proper for me to set aside the order of 3 November 2005 if the appellant could show that there was some useful purpose that would be served by setting aside the order, in the form of an argument to the effect that the decisions below were wrong.

5. In this case, the appellant has had the advantage of the decision and reasons of the Tribunal, together with the reasons given below in the Federal Magistrates Court.

6. The matter was fully considered by the Federal Magistrate on the question of review and the application was dismissed. The Federal Magistrate was not satisfied that any error had been shown on the part of the Tribunal. Therefore, as the decision was one to which the privative clause requirements of s 474 of the Migration Act 1958 (Cth) applied, the Court did not have any jurisdiction to intervene.

7. In the circumstances, and on the basis that I accept the appellant’s statement in his affidavit that he was sick, although he has given no evidence in support, no useful purpose would be served by reopening this matter.  I am not satisfied or persuaded that there is any reasonably arguable case or any proper basis for opening up the matter for argument.  The appellant has been unable to satisfy me that there are any grounds for allowing the appeal or granting a review of the decision of the Tribunal. 

8. Accordingly, I dismiss the application with costs.

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

Associate:

Dated:             7 December 2005

The Appellant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	21 November 2005
Date of Judgment:	21 November 2005