SZEMP v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1367

FEDERAL COURT OF AUSTRALIA

SZEMP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1367

SZEMP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD1226 OF 2005

EMMETT J
9 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1226 of 2005

BETWEEN:	SZEMP APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	9 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent's 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	NSD1226 OF 2005

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

JUDGE:	EMMETT J
DATE:	9 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant claims to be a citizen of Pakistan.  He arrived in Australia on 9 November 2003.  On 22 December 2003, he lodged an application for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (‘the Act’). On 9 March 2004, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 5 April 2004, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of that decision. On 12 August 2004, the Tribunal affirmed the decision not to grant a protection visa.

2. The appellant then commenced a proceeding in the Federal Magistrates Court of Australia on 30 September 2004, seeking relief under section 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal's decision. On 6 July 2005, Smith FM ordered that the application be dismissed and that the appellant pay the Minister's costs.

3. The appellant then appealed to the Federal Court, by notice of appeal filed on 22 July 2005.  That appeal was listed for directions on 29 August 2005.  That date was changed and there is some question as to whether or not the appellant was notified of the change.  The matter came before me on 1 September 2005, when there was no appearance for the appellant.  I directed the Minister to inform the appellant that the matter had been listed for hearing on 9 September 2005 and to inform the appellant of any steps that the Minister proposed to take if there was no appearance. In accordance with that direction, the Minister caused to be sent to the appellant a letter notifying him of the adjourned directions hearing and that if he failed to attend the directions hearing the Minister would seek to have the appeal dismissed.  That letter was posted by express post on 2 September 2005.

4. When the matter was called on for directions today, there was no appearance for the appellant. There being no appearance for the appellant, the Minister asks that the Court dismiss the proceeding pursuant to section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). It is appropriate to adopt that course.

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

Associate:

Dated:             21 September 2005

No appearance for the appellant
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	9 September 2005
Date of Judgment:	9 September 2005