SZDXC v Minister for Immigration and Citizenship

[2007] FCA 654

FEDERAL COURT OF AUSTRALIA

SZDXC v Minister for Immigration and Citizenship [2007] FCA 654

SZDXC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2425 OF 2006

MOORE J
9 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2425 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDXC
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	9 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion of 12 March 2007 be dismissed.

2.The applicant pay the first respondent's costs of the notice of motion.

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 2425 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDXC
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	9 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By notice of motion filed 12 March 2007, the applicant seeks to set aside orders made on 27 February 2007: see SZDXC v Minister for Immigration and Citizenship [2007] FCA 214 ("SZDXC"). The applicant did not appear on that occasion and I dismissed with costs the application for leave to appeal pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) ("the Act"), for the reasons which appear in the judgment. The orders have not been entered. Pursuant to s 25(2B)(bc) of the Act, the Court may vary or set aside an order made under s 25(2B)(bb) of the Act (See also Order 35, rule 7(1) of the Federal Court Rules).

2. On 14 March 2007, orders were made that the motion be dealt with without an oral hearing, pursuant to Order 52, rule 2AB of the Federal Court Rules.  The applicant has filed an affidavit in support of the motion.  The parties were invited to file a summary of argument as contemplated by Order 52, rule 2AB(2), which only the first respondent has done.  In his affidavit, the applicant states the he could not attend the hearing on 27 February 2007 "as a result of my illness", that his health was "very bad and I could not take medication" and that he does not have access to Medicare and could not go to a doctor.  He further states that he lives in Griffith and that it was not possible for him to telephone to inform the Court of his inability to attend due to illness.  He requests "another opportunity to attend the hearing and argue my case". 

3. The first respondent opposes the notice of motion.  First, it is submitted that there was no independent corroborative evidence before the Court, such as a medical certificate, to support the applicant's evidence that he could not attend the hearing due to ill health.  Further, there was no evidence of any attempt by the applicant to contact the first respondent's solicitors to notify them of his inability to attend the hearing due to ill health.  Secondly, relying on earlier written submissions filed for the hearing on 27 February 2007, the first respondent submitted that there was no merit to the application for leave to appeal.  Thirdly, as noted in SZDXC, the Federal Magistrate's decision was clearly correct given that the applicant sought to challenge the decision of the delegate of the first respondent and the history of litigation.  Any order that the judgment be set aside would therefore be futile.

4. For the reasons identified by the first respondent, the motion should be dismissed.  The applicant is to pay the first respondent's costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        9 May 2007

Solicitor for the Respondent:	Clayton Utz
Date of Judgment:	9 May 2007