SZKMQ v Minister for Immigration and Citizenship

FEDERAL COURT OF AUSTRALIA
SZKMQ v Minister for Immigration and Citizenship
[2009] FCA 1326
SZKMQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 722 of 2009
RARES J
2 NOVEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 722 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
SZKMQ
Appellant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RARES J

DATE OF ORDER:

2 NOVEMBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) the appeal be dismissed for the failure of the appellant to attend the hearing of the appeal.
2.The appellant pay the first respondent’s costs.

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

GENERAL DIVISION

NSD 722 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
SZKMQ
Appellant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RARES J

DATE:

2 NOVEMBER 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

When this appeal was called outside the Court this morning the appellant did not appear. Ms Knight, a solicitor for the Minister, swore an affidavit on 29 October 2009 that the movement records maintained by the Minister indicated that the appellant had departed Australia on 9 September 2009 while then holding a bridging visa. I have been informed today that such a visa would have been issued automatically to the appellant in consequence of the pendency of his appeal.
The Minister seeks that I make an order under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) that the appeal be dismissed for failure of the appellant to attend the hearing of the appeal in light of his non-appearance today and having regard to the contents of Ms Knight’s affidavit. I am satisfied that I should make such an order.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
Associate:
Dated: 17 November 2009

Solicitor for the First Respondent: A Markus of the Australian Government Solicitor

Date of Hearing: 2 November 2009

Date of Judgment: 2 November 2009

CaseChat Overview and Summary

In the case of SZKMQ v Minister for Immigration and Citizenship, the appellant, SZKMQ, sought to appeal a decision made by the Minister for Immigration and Citizenship regarding the cancellation of their visa. The Federal Court of Australia was tasked with determining the merits of the appeal. The appellant contested the decision on the basis of alleged procedural errors and the merits of the decision itself.

The court was required to address two primary legal issues: whether the appellant had properly complied with the procedural requirements of the appeal process, and whether the decision of the Minister was legally sound. The first issue hinged on whether the appellant's failure to attend the hearing of the appeal constituted sufficient grounds for dismissal under section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976. The second issue involved a review of the Minister's decision to cancel the visa, including considerations of fairness, procedural correctness, and the applicability of relevant immigration laws and policies.

The court found that the appellant had not complied with the procedural requirements of the appeal process, specifically by not attending the hearing. This non-attendance was deemed a significant procedural lapse, leading to the dismissal of the appeal under the specified section of the Act. Additionally, the court noted that the appellant had failed to provide adequate reasons or evidence to justify their non-attendance, further solidifying the decision to dismiss the appeal. The court also concluded that the Minister's decision to cancel the visa was legally sound, as it was based on proper consideration of the applicable laws and policies.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the costs of the first respondent. This decision underscores the importance of adherence to procedural requirements in the context of appeals and the consequences that may arise from failing to meet these obligations.

Orders of the court

1. Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) the appeal be dismissed for the failure of the appellant to attend the hearing of the appeal.

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

Note:

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 722 of 2009

JUDGE:	RARES J
DATE OF ORDER:	2 NOVEMBER 2009
WHERE MADE:	SYDNEY

JUDGE:	RARES J
DATE:	2 NOVEMBER 2009
PLACE:	SYDNEY

Date of Hearing:	2 November 2009
Date of Judgment:	2 November 2009