SZFQV v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 377

FEDERAL COURT OF AUSTRALIA

SZFQV v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 377

MIGRATION LAW – No question of principle

SZFQV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ANOR
NSD 1928 OF 2005

RARES J
15 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1928 OF 2005

BETWEEN:

SZFQV
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

Rares J

DATE OF ORDER:

15 March 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed for failure of the appellant to attend today’s callover.

2.        The appellant is to pay the first respondent’s costs fixed in the sum of $450.

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 1928 OF 2005

BETWEEN:

SZFQV
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REGUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	Rares J
DATE:	15 March 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This matter was in my list for callover today.  The matter was called and the appellant did not appear.  The matter was previously before the court on 9 November 2005 when the appellant appeared and signed short minutes of order, paragraph 1(a) of which provided that any amended notice of appeal to be filed and served by 9 December 2005.  No amended notice of appeal has been filed and served.

2. The appellant has sought to appeal from a decision of the Federal Magistrate's Court given on 29 October 2005:  SZFQV v The Minister for Immigration [2005] FMCA 1405. The grounds of appeal are unparticularised and assert that:

   (a)in making the decision the Tribunal had denied the appellant natural justice and procedural fairness;

   (b)the decision involved ‘an error of law’;

   (c)the Tribunal ‘may appear to be bias [sic] towards the [appellant]’;

   (d)the decision did not take into account the appellant's claim that he was in danger if returned to China;

   (e)the procedures required by law were not observed in making the decision;  and

   (f)there had been a failure by the Tribunal to exercise jurisdiction.

3. In Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204 [14] Gleeson, CJ, Gaudron and Hayne JJ said:

   ‘… a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that unless there is something to indicate otherwise the power is to be exercised for correction of error.’

4. The appellant has not given any indication as to a reason for his non appearance or his failure to file any amended notice of appeal although no direction was made that he in fact do so. Section 25 of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) provides that a single judge in my position may make an order that an appeal be dismissed for, inter alia, a failure to comply with a direction of a court or a failure of the appellant to attend a hearing relating to the appeal.

5. I am not satisfied that the appellant has failed to comply with any direction in relation to the filing of amended grounds of appeal.  The direction made by the registrar was to enable the appellant to do so if he wanted to do so.  However, the appellant has failed to attend today's callover. There is no explanation for that failure.  The grounds of appeal reveal no basis upon which I am able to discern how the court might find error in the learned trial judge's decision were an appeal to proceed.

6. In all the circumstances I am of the opinion that it is an appropriate exercise of power under s 25(2B)(bb)(ii) of the Act to order that the appeal be dismissed for the failure of the appellant to attend the callover today.

7. The Minister seeks fixed costs order in the sum of $450 in respect of the appeal. I am of opinion that it is appropriate to make such an order.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:   6 April 2006

Appellant:	In person
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	15 March 2006
Date of Judgment:	15 March 2006