SZIBK v Minister for Immigration and Multicultural Affairs and Anor

[2007] FCA 117

FEDERAL COURT OF AUSTRALIA

SZIBK v Minister for Immigration and Multicultural Affairs and Anor [2007] FCA 117

SZIBK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1749 OF 2006

COWDROY J
14 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1749 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIBK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	14 FEBRUARY 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).

2.The appellant pay the costs of the first respondent determined in the sum of $3000, pursuant to Order 62 Rule 4(2)(c) of the Federal Court Rules.

3.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

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 1749 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIBK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	14 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals to this Court from a decision of Driver FM delivered on 14 August 2006, which dismissed a challenge by the appellant to a decision of the Refugee Review Tribunal that he was not entitled to a Protection visa.

2. The appellant failed to appear at today’s hearing.

3. By letter of the Registrar of the Court dated 13 December 2006, the appellant was notified that the appeal would be heard at 2.15 pm on 14 February 2007 at the Law Courts Building, Queens Square Sydney. Further, by letter dated 19 December 2006 the first respondent’s solicitor confirmed the date, time and place fixed for the hearing. Such letter informed the appellant that if he failed to appear, the first respondent would make application to have the appeal dismissed with costs.

4. By letter dated 9 February 2007 the first respondent’s solicitor again wrote to the appellant enclosing submissions and forwarding a Notice of Contention which was filed on 9 February 2007. The letter advised again of a hearing date, namely 14 February 2007, but specified a time of 10.15 am, instead of 2.15 pm. Since the Court was sitting at 10.15 am today and there was no appearance before the Court by the appellant, I am satisfied that the erroneous time stated in the last mentioned letter is of no consequence and that the appellant has chosen not to appear.

5. The first respondent seeks an order that the proceedings be dismissed because of the appellant’s failure to appear. Costs are also sought in the sum of $3000.

6. Section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) empowers the Court to make an order that an appeal to the Court be dismissed for the failure of the appellant to attend a hearing relating to the appeal. It is appropriate that the Court exercise its power to dismiss the proceedings pursuant to this sub-section.

7. Since the costs claimed by the first respondent relating to the appeal are reasonable, the Court will make an order pursuant to Order 62 Rule 4(2)(c) of the Federal Court Rules that the appellant be ordered to pay a gross sum of $3000 in respect of such costs.

8. The Court notes that in seeking the above orders the first respondent does not require a determination of the issue raised in its Notice of Contention filed on 9 February 2007.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:
Dated:        14 February 2007

Counsel for the Respondent:	S. Lloyd
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	14 February 2007
Date of Judgment:	14 February 2007