SZEET v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 651

FEDERAL COURT OF AUSTRALIA

SZEET v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 651

SZEET v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD505 OF 2005

BENNETT J
9 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD505 OF 2005

BETWEEN:	SZEET APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	9 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is refused.

2.The applicant pay the respondent’s costs.

3.The respondent has leave to submit evidence of fixed costs by Friday 13 May 2005.

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	NSD505 OF 2005

BETWEEN:	SZEET APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BENNETT J
DATE:	9 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of the Refugee Review Tribunal (‘the Tribunal’) of 30 June 2004. An application for review was filed in the Federal Magistrates Court on 16 August 2004. Subsequently, Federal Magistrate Smith made directions and, on 10 March 2005, his Honour ordered that the application be dismissed pursuant to Pt 13.03 (A)(c) of the Federal Magistrates Court Rules as there was no appearance by the applicant.

2. On 31 March 2005, the applicant filed an application for leave to appeal in this Court.  The matter was listed originally before Madgwick J on 27 April 2005.  There was no appearance for the applicant although the Court did receive a letter in which the applicant stated that she was not physically fit to attend the hearing.  That letter requested an adjournment for two weeks and confirmed the address at which the applicant could be contacted.  It is my understanding that this letter was not actually available to Madgwick J when the matter was called before his Honour but, in any event, the matter was stood over until today.

3. The applicant has been notified of the listing today and there has been no appearance, nor has the solicitor for the respondent received any correspondence in relation to today's matter.  I am asked to dismiss the application on the ground of non-appearance.  The matter was called outside the Court and there has been no appearance by the applicant.

4. While there does not seem to be any particular section or rule that deals precisely with a non-appearance of an applicant at a hearing of an application for leave to appeal, I am satisfied that either under s 25(2B)(bb)(ii), of the Federal Court of Australia Act 1976 (Cth), which provides that an appeal may be dismissed by reason of the failure of an appellant to attend the hearing, or under O 35A r 3 of the Federal Court Rules, by reason of a default as set out in O 35A r 2(1)(f), the Court may order that the proceedings be dismissed.

5. Accordingly, I dismiss the application for leave to appeal.

6. I order that the applicant pay the respondent’s costs.  If the respondent wishes to seek an order for a fixed amount of costs the respondent has leave to send evidence of those costs by way of an affidavit to my chambers and I will make an order in chambers.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             24 May 2005

Counsel for the Applicant:	No appearance
Solicitor for the Applicant:	No appearance
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	9 May 2005
Date of Judgment:	9 May 2005