SZGYL v Minister for Immigration and Citizenship

[2007] FCA 1924

FEDERAL COURT OF AUSTRALIA

SZGYL v Minister for Immigration and Citizenship [2007] FCA 1924

SZGYL v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 1840 OF 2007

GRAHAM J
12 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1840 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGYL Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	12 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent Minister’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	NSD 1840 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGYL Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	GRAHAM J
DATE:	12 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Barnes FM on an application for constitutional writ relief brought by the appellant, who was identified for the purposes of the proceedings in the Federal Magistrates Court of Australia and in this Court as SZGYL.  

2. The Amended Application in the Federal Magistrates Court of Australia was filed on 21 October 2005.  The decision of the learned Federal Magistrate on that application was delivered on 23 August 2007 following a hearing on 9 August 2007 in which the appellant appeared in person.  Her Honour ordered that the application be dismissed. 

3. In her reasons for judgment the learned Federal Magistrate said at [21]:

   ‘21.This application for review was listed for hearing on 30 January 2007 at the same time as the separate applications of the applicant’s wife (see SZGYM v Minister for Immigration & Multicultural Affairs [2007] FMCA1418) and his son (SZGYK v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FMCA 446). I note that the applicant’s son did not appear on that day or on the date to which his application was adjourned and his application was dismissed for non-appearance.’

4. When the matter was called earlier today, the appellant did not appear. 

5. In a related matter, being that of the appellant’s wife, who has been identified for the purposes of these proceedings in the Federal Magistrates Court of Australia and in this Court as SZGYM, the appellant’s wife appeared in person with the assistance of an interpreter from the Mandarin language into the English language and vice versa, who is conversant in the Fuqing dialect. 

6. In the absence of the appellant in this matter, I asked the appellant in the other matter whether she was able to cast any light on the absence of her husband before the Court today.  Her response was to indicate that he had a toothache.

7. I have been asked by the respondent Minister to deal with the appeal in this matter in accordance with s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’), which empowers the Court to make an order that the appeal be dismissed for failure of the appellant to attend the hearing of his appeal.

8. Were the reason for the appellant’s absence as his wife has suggested, it would provide no proper basis for any adjournment of the hearing of the appeal in the absence of attendance before the Court and an application for an adjournment occasioned by such an affliction. 

9. In my opinion, it is proper for the Court to deal with this appeal under s 25(2B)(bb)(ii) of the Act. The appellant having failed to attend the hearing of his appeal, I order that the appeal be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        6 December 2007

The Appellant did not appear.
Counsel for the Respondent:	H P T Bevan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 November 2007
Date of Judgment:	12 November 2007