SZILX v Minister for Immigration and Citizenship

[2007] FCA 1369

FEDERAL COURT OF AUSTRALIA

SZILX v Minister for Immigration and Citizenship [2007] FCA 1369

SZILX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD752 OF 2007

SPENDER J
15 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD752 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZILX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	15 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as the second respondent to the appeal.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of and incidental to the appeal, fixed in the sum of $1,500.00.

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	NSD752 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZILX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE:	15 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I note the non‑appearance of the appellant to prosecute his appeal. 

2. The matter will be dismissed for want of prosecution. 

3. Further, however, while I have not had the benefit of any submissions the appellant might want to make concerning his appeal, I have read in full the reasons for judgment of the Refugee Review Tribunal (the Tribunal) and of the Federal Magistrates Court, and the written submissions on behalf of the first respondent. 

4. In this particular case Nicholls FM dismissed the application and affirmed the decision of the Tribunal to refuse to grant to the appellant a Protection Visa.  The appellant did not attend the hearing in the Tribunal on 10 January 2006. 

5. While there was no evidence to support the contention, he submitted to Nicholls FM that he was robbed on the day of the hearing before the Tribunal, had lost his documents and mobile phone and could therefore not attend the hearing or presumably contact the Tribunal.  His Honour said at [23]:

   [That submission] does not assist the applicant in showing jurisdictional error on the part of the Tribunal.  The applicant has provided no evidence whatsoever to support this assertion.  Nor nor did he report the robbery to the police, or even attempt to contact the Tribunal.  But even if the applicant had been robbed as he claimed, that the consequence that failure to attend the hearing was through “no fault” of his own, in the absence of any knowledge of this, the Tribunal was “authorised to proceed to decide the review.”

6. The appellant’s only ground of appeal alleges Nicholls FM erroneously upheld the respondent’s view that there was no jurisdictional error in the decision of the Tribunal, and asserts both that the appellant had no chance to present his grounds before the Tribunal, and  Nicholls FM erred in upholding the respondent’s view. 

7. On all of the material it is plain that the Federal Magistrate was correct in his Honour’s conclusion that no jurisdictional error tainted the decision of the Tribunal. 

8. On the material before the Court the appeal does not disclose any error in the decision of Nicholls FM or of the Tribunal and the appeal, on that ground also, ought to be dismissed with costs. 

9. I direct that the Refugee Review Tribunal be joined as a second respondent, the Minister being now the first respondent. 

10. I order that the appeal be dismissed, and the appellant pay the first respondent’s costs of and incidental to the appeal, which I fix in the sum of $1,500.00.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:       29 August 2007

No appearance by the Appellant:
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	15 August 2007
Date of Judgment:	15 August 2007