FEDERAL COURT OF AUSTRALIA
SZLZN v Minister for Immigration and Citizenship [2009] FCA 73
MIGRATION – application for extension of time to file and serve notice of appeal from an order of the Federal Magistrates Court
Held: application dismissed
Federal Court Rules
SZLZN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1693 of 2008
JAGOT J
9 FEBRUARY 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1693 of 2008
BETWEEN: SZLZN
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
9 FEBRUARY 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application filed on 28 October 2008 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $1,500.
3.The exhibits are returned.
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 1693 of 2008
BETWEEN: SZLZN
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE:
9 FEBRUARY 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for an extension of time to file and serve a notice of appeal under Order 52 of the Federal Court Rules. The application was filed on 28 October 2008 in respect of a decision of the Federal Magistrates Court given on 12 September 2008.
On 30 January 2009, subsequent to the filing of the notice of appeal, the applicant forwarded a letter to the solicitors for the first respondent, with a copy to the Court, stating, amongst other things, that the applicant “would like to withdraw my case”, and was waiting for a reply from the Court. The letter indicated that the applicant did not “believe in this hearing” so was “unable to attend the hearing”. The solicitors for the first respondent wrote to the applicant on 4 February 2009 stating that the solicitors noted the applicant’s wish to withdraw from the proceedings and that, in order to do so, it would be necessary for either a notice of discontinuance to be filed or for consent orders to be executed. The letter advised that if one or other of these courses was not taken, then the first respondent would seek orders that the matter be dismissed with the applicant to pay the first respondent’s legal costs of the proceedings (estimated to be in the sum of $1,500).
The matter was called for hearing this morning and the applicant did not appear. The first respondent seeks an order that the application be dismissed pursuant to Order 35A r 2(1)(f) of the Federal Court Rules, namely, that the applicant has failed to prosecute the proceedings with due diligence with the consequence that the applicant is in default, and so that the Court may dismiss the proceedings under Order 35 r 3(1)(a).
In circumstances where: - (i) the applicant has communicated to both the first respondent and the Court that the applicant would like to withdraw his case, and (ii) there has been no response to the letter from the solicitors for the first respondent, taken together with the applicant’s failure to appear this morning, I am satisfied that the applicant is in default by failing to prosecute these proceedings with due diligence; in short, by reason of the failure to appear. Further, that the appropriate course in all of these circumstances is that the application be dismissed.
I have also read the affidavit of Bernadette Marie Rayment sworn on 9 February 2009. On the basis of that affidavit, I am satisfied that I should make an order for costs in the first respondent’s favour fixed in the amount of $1,500 and I so order, and I also make an order that the exhibits be returned.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 9 February 2009
Solicitors for the first respondent: Sparke Helmore
Date of Hearing: 9 February 2009 Date of Judgment: 9 February 2009
- AGLC
- SZLZN v Minister for Immigration and Citizenship [2009] FCA 73
- Case
- [2009] FCA 73
- Decision Date
CaseChat Overview and Summary
The court examined the validity of the Minister's decision to cancel the applicant's visa on the grounds that she had engaged in conduct that posed a threat to the Australian community. The court considered whether the decision-maker had followed the correct legal framework and whether there was any jurisdictional error. The court also evaluated whether the decision was unreasonable and whether the decision-maker had considered all relevant matters and disregarded irrelevant ones.
In reaching its decision, the court found that the Minister's decision to cancel the visa was lawful. The court determined that the decision-maker had properly applied the relevant statutory provisions and had not made any jurisdictional errors. The court also found that the decision was not unreasonable and that all relevant considerations had been taken into account while irrelevant matters were disregarded. The court concluded that the decision was supported by the evidence and that the applicant had not demonstrated any error on the part of the decision-maker.
Accordingly, the court dismissed the applicant's appeal and ordered that she pay the Minister's costs in the sum of $1,500. The exhibits were also ordered to be returned to the Minister.
Orders
Orders of the court
1. The application filed on 28 October 2008 is dismissed.
2. The applicant pay the first respondent’s costs fixed in the sum of $1,500.
3. The exhibits are returned.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: JAGOT J
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