SZLQR v Minister for Immigration and Citizenship
[2008] FCA 936
•22 May 2008
FEDERAL COURT OF AUSTRALIA
SZLQR v Minister for Immigration and Citizenship [2008] FCA 936
SZLQR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 324 OF 2008
GRAHAM J
22 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 324 OF 2008
BETWEEN:
SZLQR
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
22 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.That the application for leave to appeal filed 10 March 2008 be dismissed.
2.That the applicant pay the respondent Minister’s costs fixed in the sum of $1,000.
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 324 OF 2008
BETWEEN:
SZLQR
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE:
22 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The matter presently before the Court is an Application for Leave to Appeal from a judgment of Smith FM given in the Federal Magistrates Court of Australia on 19 February 2008. The applicant, who is identified for the purposes of these proceedings as SZLQR, filed an Application in the Federal Magistrates Court of Australia on 19 November 2007 seeking constitutional writ relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) said to have been made on 3 October 2007, notification of that decision having been received by the applicant on 23 October 2007.
On 19 February 2008, Smith FM made an order under rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). That rule provided:
‘44.12(1)At a hearing of an application for an order to show cause, the Court may:
(a)if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; …
…’
The learned Federal Magistrate exercised the power conferred on the Court by that rule and also ordered the applicant to pay the respondent Minister’s costs fixed in the sum of $2,100. Rule 44.12(2) of the Federal Magistrates Court Rules makes it clear that a dismissal of an application under paragraph (1)(a) is interlocutory.
In these circumstances, the applicant filed an Application for Leave to Appeal from that judgment in this Court in accordance with s 24(1)(a) and s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). That Application was supported by an affidavit filed 10 March 2008, which in turn attached a draft Notice of Appeal dated 7 March 2008.
In the absence of the applicant before the Court today, that affidavit has not been read. However, I note that the draft Notice of Appeal, which was apparently filed with it, discloses grounds of appeal with which the Court has become familiar during the course of this week. Numerous appeals have come before me which contain the boilerplate grounds of appeal which are recorded in paragraphs 2, 3 and 4 of the draft Notice of Appeal where the typographical errors are identical in each case. It seems clear that the draft Notice of Appeal bears no relationship whatsoever to the case that the applicant may wish to bring.
The learned Federal Magistrate dismissed the application for constitutional writ relief which was before him in circumstances where he concluded that the application had not raised an arguable case for the relief claimed in it. He observed that the Tribunal had informed the applicant that it was unable to make a decision in his favour on his application for review on the documentary evidence alone. Accordingly it invited the applicant to a hearing on 27 September 2007 to give him an opportunity to give evidence and present arguments to the Tribunal. The applicant failed to attend the hearing and made no contact with the Tribunal before its decision was handed down.
There are in the Federal Court of Australia Act and in the Federal Court Rules (‘the Rules’) various provisions dealing with the non-attendance of a person such as the applicant. The present application is one which is before the Court in the exercise of its appellate jurisdiction, albeit that there has not, as yet, been any appeal instituted. Section 25(2)(b) of the Act provides for applications such as that presently before the court to be heard and determined by a single Judge or by a Full Court. Section 25(2B) provides that a single Judge or a Full Court may:
‘…
(bb) make an order that the appeal to the Court be dismissed for:…
(ii)failure of the appellant to attend a hearing relating to the appeal; …
…’
As I have earlier observed, there is no appeal presently before the Court. In my opinion s 25(2B)(bb) has no application in the circumstances.
There is another provision in Order 52 rule 38 of the Rules which empowers the Court to deal with an appeal in a certain way in the event that when the appeal is called on for hearing a party is absent. Once again the observation that I would make is that there is no appeal presently before the Court. Accordingly, that rule has no immediate application.
The other provision which is germane is Order 35A of the Rules. Order 35A rules 2 and 3 relevantly provide:
‘2(1) For this Order, an applicant is in default if the applicant:
…
(f) fails to prosecute the proceeding with due diligence.
…3(1) If an applicant is in default, the Court may order that:
(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
…’
It seems to me that the failure of the applicant to appear today falls within the expression ‘fails to prosecute the proceeding with due diligence’ within the meaning of Order 35A rule 2(1)(f). Whilst there are various powers available to the Court in circumstances of default, such as has occurred, it seems to me that the application should be dismissed. I am satisfied that by the letter from the Australian Government Solicitor to the applicant of 2 May 2008 the applicant was duly notified of the hearing at this time and place before me. I further note that the Court’s file includes a letter dated 29 April 2008 to the applicant informing him of the matter being listed for hearing before me in this place at 10.15 am today.
As previously noted the applicant has failed to appear. I am informed by Ms Buchanan, a solicitor from the Australian Government Solicitor’s Office, that she spoke on the telephone with the applicant on 15 May 2008 and that he confirmed receipt of the Australian Government Solicitor’s letter advising him of the time and date for hearing. I accept the evidence so provided by Ms Buchanan from the bar table as relevant material in terms of the course which the Court should now follow. As I have previously indicated it seems to me that the application should be dismissed
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 18 June 2008
The Applicant failed to appear. Solicitor for the First Respondent: L B Buchanan of Australian Government Solicitor The Second Respondent filed a submitting appearance.
Date of Hearing: 22 May 2008 Date of Judgment: 22 May 2008
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