SZJVK v Minister for Immigration and Citizenship

[2008] FCA 1724

FEDERAL COURT OF AUSTRALIA

SZJVK v Minister for Immigration and Citizenship [2008] FCA 1724

SZJVK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1128 of 2008

PERRAM  J

6 NOVEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1128 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJVK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM  J
DATE OF ORDER:	6 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1128 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJVK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM  J
DATE:	6 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal brought by the appellant from a decision of the Federal Magistrates Court given on 1 July 2008.  The notice of appeal was filed on 18 July 2008.  When the matter was called on for hearing this morning, there was no appearance by the appellant.  I had the matter called outside.

2. Thereafter, Ms McDonald, who appeared for the first respondent, read two affidavits. I am satisfied from those affidavits that the appellant left Australia on 18 October 2008. I am also satisfied that he has not, as at today’s date, re-entered the country. It follows that the power in s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), to dismiss the appeal for the non-appearance of the appellant, is enlivened.

3. Further, the circumstances in which the appellant is not present make plain that this is not an occasion upon which an appellant, although present in the jurisdiction, has failed to appear.  Rather, it is one in which the appellant has simply left the country and is no longer in a position to prosecute the appeal.  In those circumstances, the appropriate order is to dismiss the appeal.  I further order that the appellant pay the first respondent’s costs of the appeal.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram .

Associate:

Dated:        24 November 2008

There was no appearance by the appellant.
Solicitor for the First Respondent:	Ms N Johnson of Sparke Helmore

Date of Hearing:	6 November 2008
Date of Judgment:	6 November 2008