SZHMI v Minister for Immigration and Citizenship

Case [2007] FCA 1099

FEDERAL COURT OF AUSTRALIA

SZHMI v Minister for Immigration and Citizenship [2007] FCA 1099

SZHMI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 738 OF 2007

COWDROY J
14 AUGUST 2007
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 738 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHMI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

14 AUGUST 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

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

2.The Appellant pay the costs of the First Respondent in the sum of $2000.

3.The First Respondent notify the Appellant by letter of these orders forthwith.

4.Order 1 and 2 be postponed for seven days from today to allow any application to be made by the Appellant.

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 738 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHMI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

COWDROY J

DATE:

14 AUGUST 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 31 July 2007 the Court Registry sent a letter to the appellant at the address for service identified on the appellant’s Notice of Appeal. Such letter clearly indicates the date, time and location of the hearing. In addition, by letter dated 6 August 2007 the solicitors for the first respondent (‘the Minister’) wrote to the appellant at the same address providing the Minister’s outline of submissions, and a reminder of the date, time and location of the hearing. Such letter also incorporated a map, showing the location of the Court building. 

  2. There has been no appearance by the appellant today and no further communication has been received by the Court or the Minister from him. In the circumstances, the Minister seeks an order pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) that the appeal be dismissed for the failure of the appellant to attend the hearing. An order for costs is also sought by the Minister in the sum of $2000.

  3. In view of the absence of the appellant, the Court considers that it is appropriate to make such order subject to its effect being postponed for a period of seven days to allow the appellant to make any application that might be necessary.

  4. Accordingly, the Court dismisses the appeal and makes orders as above.

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

Associate:

Dated:        14 August 2007

Counsel for the Appellant: The appellant did not appear
Solicitor for the Respondent: DLA Phillips Fox
Date of Hearing: 14 August 2007
Date of Judgment: 14 August 2007
Details
AGLC
SZHMI v Minister for Immigration and Citizenship [2007] FCA 1099
Case
[2007] FCA 1099
Decision Date

CaseChat Overview and Summary

The case of SZHMI v Minister for Immigration and Citizenship involved an appeal against a decision of the Administrative Appeals Tribunal (AAT). The Appellant, SZHMI, sought to challenge the AAT's decision which had upheld the Minister's decision to cancel their visa on the grounds of character. The matter was heard in the Federal Court of Australia, where the Appellant was required to appear. However, the Appellant failed to attend the hearing, leading to the dismissal of their appeal.

The central legal issue before the court was whether the Appellant's failure to appear constituted grounds for dismissing the appeal, and if so, what the appropriate consequences should be. The court was also required to consider the appropriate costs order in the circumstances, and whether there should be a postponement to allow for any potential applications by the Appellant.

The Federal Court found that the Appellant's failure to appear at the hearing was sufficient grounds for the dismissal of the appeal. The court noted that the Appellant had been provided with all necessary information regarding the hearing, including the date, time, and location, and had made no attempt to contact the court to explain their absence. The court further held that the Appellant should be ordered to pay the costs of the First Respondent, being the Minister, in the sum of $2000. The court also decided to postpone the enforcement of the dismissal and costs orders for a period of seven days to allow the Appellant to make any necessary applications. The court reasoned that this would provide the Appellant with an opportunity to address any issues that may have prevented their attendance, and to potentially seek leave to re-list the appeal.

Orders

Orders of the court

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

2. The Appellant pay the costs of the First Respondent in the sum of $2000.

3. The First Respondent notify the Appellant by letter of these orders forthwith.

4. Order 1 and 2 be postponed for seven days from today to allow any application to be made by the Appellant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

COWDROY J

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Ratio Decidendi

Legal Principle Established

Established by: COWDROY J

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