SZLZT v Minister for Immigration and Citizenship

[2008] FCA 1851

FEDERAL COURT OF AUSTRALIA

SZLZT v Minister for Immigration and Citizenship [2008] FCA 1851

SZLZT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 997 of 2008

SPENDER J
29 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 997 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLZT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	29 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed, if not agreed.

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 997 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLZT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE:	29 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I am satisfied on the material which I have indicated on the record that the appellant has had notice of this matter. Section 25(2B)(bb)(ii) empowers a single judge or a Full Court to make an order that an appeal to the court be dismissed for failure of an appellant to attend a hearing relating to the appeal.  Pursuant to section 25(2B)(bb)(ii),  I therefore dismiss the appeal from the whole of the judgment of Cameron FM given on 13 June 2008 for review of the decision of the Refugee Review Tribunal on 20 December 2007, and I order that the appellant pay the first respondent’s costs of and incidental to this appeal.

2. In addition, I have looked at all the material that has been placed before the Court, and on the basis of that material there is no prospect of a successful appeal.

3. The background to the appeal is as follows:  the appellant is a citizen of Serbia.  He arrived in Australia on 19 June 2007 on a Subclass 676 Visitor Visa.  The appellant lodged an application for a Protection (Class XA) Visa on 18 July 2007.  On 6 August 2007, a delegate of the Minister refused the application.  On 21 August 2007, the appellant applied to the Refugee Review Tribunal for review.   He was asked to attend a hearing on 31 October 2007, which was subsequently re-scheduled for 9 November 2007.  The appellant attended that hearing and gave evidence to the Tribunal.  On 29 November 2007, the Tribunal decided to affirm the delegate’s decision; the Tribunal’s decision was handed down on 20 December 2007.  The appellant then applied to the Federal Magistrates Court for review of the Tribunal’s decision on 22 February 2008.  The application was heard on 13 June 2008.  Cameron FM dismissed the application.  On 3 July 2008, the appellant filed a Notice of Appeal in this Court.

4. The grounds of appeal to this Court are as follows: 

   1.The Tribunal did not accord my Review Application with the procedural fairness.

   2.        Jurisdictional Error.

   3.The Tribunal did not fairly and reasonably when Review my protection visa application.

   4.        The Tribunal did not apply correct test in Relation to my claims …

5. The appellant also seeks the following orders:

   1.        Mandamus

   2.        Certiorari

   3.        Prohibition

   4.        Costs …

6. None of the grounds in the Notice of Appeal allege error in the judgment of Cameron FM.  The demonstration of error by the Federal Magistrates Court is necessary if the appellant is to succeed on this appeal.  I take it, however, that the appellant alleges error on the part of Cameron FM on the basis that his Honour failed to find the errors which the applicant asserted attended the Tribunal’s decision.

7. Grounds 2 and 3 of the Notice of Appeal to this Court do not allege any specific error reviewable by this Court.  The possible grounds, therefore, are either that the appellant was not accorded procedural fairness, or that Cameron FM erred in failing to find the Tribunal did not apply the correct test.

8. I have had regard to the decision of Cameron FM, in particular in relation to those two asserted errors or failures.  Neither is demonstrated on the material.  There is no error in his Honour’s treatment of the application for review to the Federal Magistrates Court.  In particular, there is no jurisdictional error.

9. On the contrary, both the Tribunal and Cameron FM were aware of the correct test and applied it.  Further, the appellant has been given the opportunity to be heard in the Federal Magistrates Court and to present his case with, I must say, a great deal of generosity, as appears from the judgment of Cameron FM.

10. In the Federal Magistrates Court the appellant’s claims were fairly considered and logically and reasonably rejected.  Accordingly, this appeal would have to be dismissed if one were considering the merits of the appeal.

11. However, when the matter was called on today, notwithstanding clear notice to the appellant, the appellant did not appear.  In those circumstances, notwithstanding there seems to be no merit in the appeal, I dismiss the appeal pursuant to section 25(2B)(bb). 

12. For the above reasons:

    (1)the appeal is dismissed;

    (2)the appellant is ordered to pay the costs of the first respondent of and incidental to the appeal to be taxed if not agreed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:
Dated:       8 December 2008

Counsel for the Appellant:	No appearance for the Appellant
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	29 August 2008
Date of Judgment:	29 August 2008