SZILL v Minister for Immigration and Citizenship

[2007] FCA 1760

FEDERAL COURT OF AUSTRALIA

SZILL v Minister for Immigration and Citizenship [2007] FCA 1760

SZILL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1835 OF 2007

GRAHAM J
13 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1835 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZILL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	13 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT:

1.Orders that the hearing of the appeal be adjourned to 10.15 am on 22 November 2007.

2.Directs the first respondent to:

(a)   endeavour to make telephone contact with the appellant, with the assistance of the interpreter, to advise the appellant orally of the time and place when the hearing will proceed before Graham J;

(b)   write a letter to the appellant today advising the time, date and place for the hearing of the appeal next week, posting such letter to the appellant at both the street address and also the post office box nominated as the appellant’s address for service in the Notice of Appeal; and

(c)   write a further letter to the appellant as soon as practicable posting same to both of the addresses mentioned above and enclosing a copy of the orders made today and the reasons for judgment in relation to them.

3.Directs that the name of the appellant be suppressed so that, in place of the name mentioned in the evidence of Elizabeth Mi, the name ‘[SZILL]’ be inserted.

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 1835 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZILL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	13 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant in this matter arrived in Australia on 10 August 2005.  On 23 September 2005 he lodged an application for a Protection (Class XA) Visa.  That application was supported by a statutory declaration sworn on a date in mid-September that appears to have been 21, 22 or 23 September 2005. 

2. The appellant’s application was refused by a delegate of the Minister on 27 October 2005.  He applied for review of the Minister’s delegate’s decision on 28 November 2005. 

3. The Refugee Review Tribunal (‘the Tribunal’) considered the application for review and undertook a hearing on 17 January 2006.  On 18 January 2006 the Tribunal decided to affirm the decision of the Minister’s delegate not to grant the appellant a protection visa. 

4. On 2 March 2006 the appellant applied to the Federal Magistrates Court for constitutional writ relief in respect of the Tribunal’s decision.  On 5 June 2006 an Amended Application was filed. That application was heard and determined adversely to the appellant by Barnes FM on 21 August 2007. 

5. On 11 September 2007 the appellant filed a Notice of Appeal in this Court appealing from the decision of the learned Federal Magistrate.  The Notice of Appeal identified two grounds of appeal and recorded by way of amplification of those two grounds five matters by way of particulars.

6. By letters dated 15 October 2007 directed to the appellant at his address for service nominated in the Notice of Appeal he was advised of the fact that the hearing of his appeal would take place on 13 November 2007 at 2.15 pm.  When the appellant’s name was called today, 13 November 2007, at 2.15 pm or shortly thereafter he did not appear. 

7. Counsel for the first respondent invited the Court to consider dismissing the appeal under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) due to the failure of the appellant to attend the hearing of his appeal.

8. Before proceeding to deal with that foreshadowed application I suggested that I would be assisted by knowing whether or not contact could be had with the appellant by telephoning the telephone number given by him as his telephone number on the Notice of Appeal filed 11 September 2007. 

9. Evidence has been given by the interpreter, who had attended to assist the appellant in interpreting from the English language into the Mandarin language and vice versa on the hearing of the appeal, that she spoke a short time ago with a person who answered the telephone with the number indicated as that of the appellant on the Notice of Appeal.  The interpreter has given evidence that the person identified himself as the appellant and when asked whether he was intending to be present in Court indicated that he would not be coming because he was too far away.  He was in fact in Perth in Western Australia, where he was working.  He suggested that it was only yesterday that he had received notification of the hearing date fixed for today at 2.15 pm. 

10. The appellant was asked what he wanted to do about the matter and he indicated that he would come if it was possible to do so and suggested that a hearing on a date next week would be possible.

11. I am not satisfied that the notification to the appellant of today’s hearing date was only received yesterday or thereabouts at the address for service.  It seems pretty clear to me that it was received about four weeks ago.  Be that as it may, in the circumstances it is clear that the appellant is not minded to abandon his appeal and wishes to have the matter heard. 

12. I propose to fix the matter for hearing at 10.15 am on Thursday, 22 November 2007. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:       15 November 2007

The Appellant did not appear.
Counsel for the First Respondent:	B K Nolan
Solicitor for the First Respondent:	Australian Government Solicitor
The Second Respondent entered a submitting appearance.
Date of Hearing:	13 November 2007
Date of Judgment:	13 November 2007