SZICR v Minister for Immigration and Citizenship

[2008] FCA 115

FEDERAL COURT OF AUSTRALIA

SZICR v Minister for Immigration and Citizenship [2008] FCA 115

SZICR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1859 OF 2007

COLLIER J
20 FEBRUARY 2008
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1859 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZICR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	20 FEBRUARY 2008
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

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

2.The appellant pay the costs of the first respondent to and in the sum of $2,649.75 pursuant to O 62 r 4(2)(c) Federal Court Rules.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1859 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZICR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	20 FEBRUARY 2008
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. The appellant appeals to this court from a decision of Nicholls FM delivered on 22 August 2007, which dismissed an application by the appellant for a review of the decision of the Refugee Review Tribunal that he was not entitled to a protection visa. When the hearing commenced at 10.15 am this morning there was no appearance before the Court by the appellant. The court officer called the name of the appellant outside of the courtroom however there was no response. I requested my associate to call the appellant on the mobile phone number which was notified in the Court records as his contact telephone number. My associate managed to speak to someone who identified himself as the appellant at that telephone number. No reason was given by that person for the failure of the appellant to appear in Court this morning.

2. Mr Cleary on behalf of the first respondent tendered two documents. The first document was a copy of a letter sent by the Federal Court of Australia to the appellant and to the instructing solicitors for the first respondent, Clayton Utz, dated 4 December 2007, notifying the appellant of the date and place of hearing (namely today’s date 20 February 2008 at 10.15 am before me). The second document tendered by Mr Cleary was a letter from Clayton Utz to the appellant dated 15 February 2008 enclosing the first respondent’s outline of submissions filed 15 February 2008, and noting that the matter was listed for hearing today at 10.15 am. The first respondent seeks an order either finally determining the proceedings or that the proceedings be dismissed because of the appellant’s failure to appear. Fixed costs are also sought in the sum of $2,649.75.

3. Section 25(2B)(bb)(ii) 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. I’m satisfied that all endeavours have been made to notify the appellant of the details of today’s hearing. In my view in light of the failure of the appellant to attend the hearing and the lack of explanation for that non-attendance it is appropriate that the court exercise its power to dismiss the present proceedings pursuant to this subsection.

4. Further, in my view the costs claimed by the first respondent relating to this appeal are reasonable. I have considered the affidavit of Mr Richard Baird, solicitor of Clayton Utz, sworn today and filed in Court this morning in which Mr Baird deposes as to the costs which have been incurred by the first respondent.

5. Therefore, I will make an order pursuant to O 62 r 4(2)(c) Federal Court Rules as sought by the first respondent that the appellant be ordered to pay the sum of $2,649.75 in respect of such costs.

   THE COURT ORDERS THAT:

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

   2.The appellant pay the costs of the first respondent to and in the sum of $2,649.75 pursuant to O 62 r 4(2)(c) Federal Court Rules.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        21 February 2008

Counsel for the Appellant:	The appellant did not appear
Counsel for the Respondent:	MP Cleary
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	20 February 2008
Date of Judgment:	20 February 2008