SZINT v Minister for Immigration and Citizenship

[2007] FCA 276

FEDERAL COURT OF AUSTRALIA

SZINT v Minister for Immigration and Citizenship [2007] FCA 276

SZINT AND SZINU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1717 OF 2006

COLLIER J
1 MARCH 2007
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1717 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZINT
First Appellant

SZINU
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	1 MARCH 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

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

2.The Refugee Review Tribunal be formally joined as a second respondent.

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

4.The appellant pay the costs of the first respondent determined in the sum of $2300 pursuant to Order 63 rule 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	NSD1717 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZINT
First Appellant

SZINU
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	1 MARCH 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The appellants appeal to this Court from a decision of Smith FM delivered on 17 August 2006, which dismissed an application by the appellants for review of the decision of the Refugee Review Tribunal that they were not entitled to protection visas.

2. The hearing commenced at 10.15 am this morning. There was no appearance before the Court by the appellants. The court officer called the names of the appellants outside of the Court, and there was no response. I requested my associate to call the appellants on the mobile phone number which was notified in the appeal book as their contact telephone number. My associate managed to speak to someone who was not the appellants on that telephone number. No reason was given by that person, to that person’s knowledge, for the failure of the appellants to appear in Court this morning.

3. Mr Mitchell, on behalf of the first respondent, tendered three documents. The first document was a copy of a letter sent by the Federal Court of Australia to the appellants and to the instructing solicitors for the first respondent dated 23 January 2007, notifying the appellants of the date and place of hearing, namely today’s date (1 March 2007) at 10.15 am before me.

4. The second document tendered by Mr Mitchell was a letter from Clayton Utz, the instructing solicitors for the first respondent, to the appellants dated 19 February 2007 enclosing the appeal book filed 15 February 2007, and noting that the matter was listed for hearing on 1 March 2007 at 10.15 am.

5. The third document tendered by Mr Mitchell was a further letter from Clayton Utz to the appellants dated 28 February 2007, enclosing, by way of service, the outline of submissions of the first respondent dated 27 February 2007, and noting that the matter was listed for hearing on 1 March 2007 at 10.15 am before me.

6. The first respondent seeks an order that the proceedings be dismissed because of the appellants’ failure to appear. Costs are also sought in the sum of $2300.

7. 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 am satisfied that all endeavours have been made to notify the appellants of the details of today’s hearing. In my view, in light of the failure of the appellants to attend the hearing, the lack of explanation for that non-attendance and the inability of the Court to contact them on their contact telephone number, it is appropriate that the Court exercise its power to dismiss the present proceedings pursuant to this subsection.

8. Further, in my view, the costs claimed by the first respondent relating to this appeal are reasonable. 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 $2300 in respect of such costs.

9. I also order that the name of the first respondent be amended to read “Minister for Immigration and Citizenship” and I join the Refugee Review Tribunal as a second respondent.

   THE COURT ORDERS THAT:

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

   2.The Refugee Review Tribunal be formally joined as a second respondent.

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

   4.The appellant pay the costs of the first respondent determined in the sum of $2300 pursuant to Order 63 rule 4(2)(c) Federal Court Rules.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        6 March 2007

Counsel for the Appellant:	The Appellant did not appear
Counsel for the Respondent:	J Mitchell
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 March 2007
Date of Judgment:	1 March 2007