SZIWZ v Minister for Immigration and Citizenship

[2007] FCA 232

FEDERAL COURT OF AUSTRALIA

SZIWZ v Minister for Immigration and Citizenship [2007] FCA 232

Federal Court of Australia Act 1976 (Cth) s 25

Federal Magistrates Court Rules 2001 O 35A r 2(1)(f), O 35A r 3

SZIWZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 1853 OF 2006

NICHOLSON J
22 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1853 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIWZ Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	NICHOLSON J
DATE OF ORDER:	22 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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

2.The description of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

3.The application for leave to appeal be dismissed.

4.The applicant pay the first respondent’s costs of the application.

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 1853 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIWZ Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	NICHOLSON J
DATE:	22 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applying for leave to appeal is not at the Court today.  I directed that he be called outside the Court, at the Registry, and on the ground floor.  These steps having been taken, there is still no appearance.

2. On 28 September 2006 the applicant gave notice of change of address to a street in Surrey Hills.  On 13 February 2007, the Appeals Support Officer wrote on behalf of the Court to that address, advising of the date and time and place of the hearing.  The time involved a change and this was pointed out in the letter.  In addition, on 14 February 2007, the solicitors for the first respondent wrote to the applicant, advising that the matter was now listed for hearing today at 9.00 am at this place.  I therefore find that the applicant had due notice of the date, time and place of the hearing of his application.

3. Section 25 of the Federal Court Act 1976 (Cth) addresses the issue of dismissal for failure to attend a hearing relating to an appeal. There may be an argument as to whether those provisions are applicable to an application for leave to appeal. I therefore turn to O 35A of the Federal Court Rules.  Rule 2(1)(f) provides that an applicant is in default if the applicant fails to prosecute a proceeding with due diligence.  Rule 3 provides that in the event of such a default by the applicant, the Court may order that the proceeding be dismissed as to the whole of the relief or part of the relief claimed by the applicant.  The first respondent has moved for dismissal of the application for leave to appeal.  In the circumstances which I have found, I consider that the first respondent is entitled to an order in those terms.

4. I therefore propose to make orders, which in addition to adding the Refugee Review Tribunal as second respondent and adjusting the title of the Minister to his present appellation, will dismiss the application for leave to appeal and make an order for costs. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated:        28 February 2007

The Applicant did not appear
Counsel for the First Respondent:	A Carter
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	22 February 2007
Date of Judgment:	22 February 2007