SZHFE v Minister for Immigration,

[2006] FCA 418

FEDERAL COURT OF AUSTRALIA

SZHFE v Minister for Immigration,
Multicultural and Indigenous Affairs [2006] FCA 418

SZHFE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 30 of 2006

JACOBSON J
SYDNEY
11 APRIL 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 30 of 2006

BETWEEN:

SZHFE
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

11 APRIL 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth).

2.The appellant pay the respondent’s costs in the proceedings.

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 30 of 2006

BETWEEN:

SZHFE
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	JACOBSON J
DATE:	11 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Driver given on 14 December 2005 dismissing an application for a review of a decision of the Refugee Review Tribunal (“the RRT”) dated 22 September 2005. The RRT affirmed a decision of a Delegate of the Minister not to grant the applicant a protection visa.

2. The appellant is a citizen of Bangladesh who arrived in Australia on 24 November 1998. On 21 August 2005 he lodged an application for a protection visa claiming a well-founded fear of persecution by reason of his political opinion; in particular, his association with and participation in the Awami League.

3. When the matter was called on for hearing this morning there was no appearance by the appellant, who is in detention at Villawood. 

4. A friend of the appellant was present in court and at my invitation she came to the bar table to tell me why the appellant could not be present.  She informed me that the appellant has had a stomach operation and that he is in pain and he planned to get a medical certificate, but that there is some confusion at present at Villawood and he was unable to forward a medical certificate to the court. 

5. However, I was informed that the appellant wants to proceed with the appeal and that he wishes to have an adjournment.

6. The Minister opposed an adjournment, pointing out that the only real issues which would arise on the appeal are issues of law. They are the proper construction and application of s 91R(3) of the Migration Act 1958 (Cth) and a possible application of the decision of a full court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2.

7. I was provided with written submissions on behalf of the appellant.  These were prepared by counsel.  However, counsel did not appear at the hearing.  I was also provided by written submissions by the Minister's counsel. 

8. The matter was listed for hearing on 9 February 2006 when the appellant appeared in person before a Registrar of the court.  The matter was originally fixed for hearing on 24 April 2006, but my associate wrote to the appellant at Villawood and to the Minister's solicitors on 16 February 2006 informing them that the hearing of the matter would take place this morning.  I am therefore satisfied that the appellant was aware of today's hearing.  That is also clear from what I was told by his friend earlier this morning.

9. I declined to adjourn the matter because the issues are issues of law and there was no indication that the appellant might be legally represented.  He has had ample opportunity to obtain legal representation if he wished to do so.  What I was told was that his friend wished to obtain advice from a lawyer with regard to the matter.  That, of course, is quite different from having legal representation at the hearing. 

10. I asked the Minister's counsel whether she wished me to exercise my power under Order 52 Rule 38A(1)(d) of the Federal Court Rules to proceed with the hearing, or whether she wished me to dismiss the appeal pursuant to my power under s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) (“the Act”).

11. In the circumstances I propose to exercise my power under the Act to dismiss the appeal for want of attendance by the appellant. 

12. There is power under Order 35 Rule 7(2)(a) for the appellant to seek an order setting aside the dismissal, the order having been made in the absence of the appellant.  That will be a matter for the appellant to pursue should he wish to do so.  I am satisfied that I have power to make the order dismissing the proceedings.

13. Accordingly, the order I make is that the appeal be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             20 April 2006

No appearance for the Appellant
Counsel for the Respondent:	Ms Clegg
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	11 April 2006
Date of Judgment:	11 April 2006