SZIET v Minister for Immigration and Citizenship

[2007] FCA 437

FEDERAL COURT OF AUSTRALIA

SZIET v Minister for Immigration & Citizenship [2007] FCA 437

SZIET v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD2438 OF 2006

COLLIER J
26 MARCH 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD2438 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIET
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	26 MARCH 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read Minister for Immigration and Citizenship.

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

3.The appellant pay the costs of the first respondent.

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	NSD2438 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIET
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	26 MARCH 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The appellant appeals to this Court from a decision of Turner FM of 23 November 2006, 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.

2. The hearing commenced at 11.30 am this morning by video link from Sydney. There was no appearance before the Court by the appellant. The court officer called the name of the appellant outside of the Court and there was no response. I requested my associate to call the appellant on the mobile telephone number which is notified in the appeal book as his contact telephone number. My associate rang the number and received a message that the telephone number was unavailable.

3. Mr Hooper, on behalf of the first respondent, tendered an affidavit of Ms Emilia Ramos affirmed 26 March 2007. Ms Ramos is a paralegal employed in the firm of DLA Phillips Fox, who are the solicitors for the respondents in these proceedings. Ms Ramos affirms that on 22 March 2007 she caused to be served on the appellant a copy of the affidavit of Leonard Keith Leerdam, who is a partner of DLA Phillips Fox, affirmed on 21 March 2007, together with re-service of the respondents’ submissions. Ms Ramos also affirms that a copy was sent to the appellant’s known address at 3/6 Hill Street Campsie NSW 2194 by courier.

4. The annexures to the affidavit are:

   ·a copy of a letter from DLA Phillips Fox to the appellant dated 22 March 2207 enclosing by way of service Mr Leerdam’s affidavit together with the respondents’ submissions by way of re-service, and noting that the matter was listed this morning at 11.30 am before me

   ·a copy of the affidavit of Mr Leerdam. Mr Leerdam affirms in that affidavit that he attempted to call the appellant on a mobile telephone number on 1 March 2007, and was informed by the appellant that his current address was 3/6 Hill Street Campsie. Attached to this affidavit were a certificate of compliance signed by Mr Derek Lee, solicitor, certifying that the affidavit of Mr Leerdam complied with O 14 r 2 Federal Court Rules, the first respondent’s outline of submissions, and a map of inner Sydney with directions to the Law Courts Building

   ·details of service of the affidavit of Mr Leerdam and its annexures on the appellant by a courier company on 22 March 2007 at the appellant’s address at Unit 3, 6 Hill Street, Campsie; and

   ·a certificate of compliance signed by Ms Kate McNamara, solicitor, certifying that the affidavit of Ms Ramos affirmed on 26 March 2007 complied with O 14 r 2 Federal Court Rules.

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

6. Section 25(2B)(bb)(ii) Federal Court of Australia Act1976 (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 am 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, the lack of explanation for that non-attendance and the inability of the Court to contact him on his contact telephone number, it is appropriate that the Court exercise its power to dismiss the present proceedings pursuant to this subsection.

7. Further, in my view, it is appropriate that the costs of the first respondent relating to this appeal be awarded. Therefore I will make an order as sought by the first respondent, that the appellant be ordered to pay the costs of the first respondent in respect of these proceedings.

8. I also order that the name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

   THE COURT ORDERS THAT:

   1.The name of the first respondent be amended to read Minister for Immigration and Citizenship.

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

   3.The appellant pay the costs of the first respondent.

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

Associate:

Dated:        27 March 2007

Counsel for the Appellant:	The Appellant did not appear
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	26 March 2007
Date of Judgment:	26 March 2007