SZKNO v Minister for Immigration and Citizenship

[2008] FCA 193

FEDERAL COURT OF AUSTRALIA

SZKNO v Minister for Immigration and Citizenship [2008] FCA 193

SZKNO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2157 OF 2007

MIDDLETON J
26 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2157 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKNO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	26 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.  The appeal be dismissed.                

2.  The appellant pay the costs of the first respondent, fixed at $3,500.

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 2157 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKNO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE:	26 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, the proceeding was called on after 2.15 this afternoon, the designated time for the hearing of this appeal by the appellant.  The first respondent sought to file in Court an affidavit of Pua Soliola affirmed on 26 February 2008 dealing with the service on 22 February 2008 of a copy of the first respondent’s written submissions and a covering letter which clearly indicated that the date, time and location of the hearing was to be this day at 2.15pm in Courtroom 14A, level 14, 80 William Street in Sydney.  I give leave for that affidavit to be filed in Court and relied upon by the first respondent.

2. If that were the only aspect of the material before me, there being no explanation as to why the appellant did not attend, then there would be no doubt that it would appropriate to exercise the discretion in s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) which allows the Court to dismiss an appeal if there is a failure of the appellant to attend a hearing relating to the appeal. There is, though, one further factor which I need to consider. The Federal Court of Australia itself on 14 December 2007 informed the appellant that the hearing would proceed on this day not in Courtroom 14A, level 14, 80 William Street but at the Law Courts Building, Queens Square, Sydney.

3. However, a perusal of the Court file also indicates that on 17 January 2008 the Federal Court of Australia informed the appellant – I should say at the address that one would expect the letter to be sent to – that the location of the hearing had been changed and brought in red print the new location, 80 William Street, East Sydney, to the attention of the appellant.

4. Therefore, any potential problem in relation to information concerning the location of today’s hearing being given by the Federal Court of Australia to the appellant which was different to that which the first respondent gave, does not seem to arise in view of that subsequent correspondence of 17 January 2008. 

5. It seems to me in these circumstances that the Court can be satisfied that the appellant has been notified of the hearing date, time and place. No explanation has been given for the failure to attend the hearing and therefore it is appropriate that an order be made under s 25(2B)(bb)(ii) that the appeal be dismissed for failure of the appellant to attend a hearing relating to the appeal and that is the order I propose to make.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:

Dated:        28 February 2008

Counsel for the Appellant:	No appearance
Counsel for the First Respondent:	J Mitchell
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	26 February 2008
Date of Judgment:	26 February 2008