SZMQY v Minister for Immigration and Citizenship

Case [2009] FCA 497

FEDERAL COURT OF AUSTRALIA

SZMQY v Minister for Immigration and Citizenship [2009] FCA 497

SZMQY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 74 of 2009

BESANKO J
7 MAY 2009
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 74 of 2009
BETWEEN:

SZMQY
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

7 MAY 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appellant’s appeal to the Court be dismissed for failure of the appellant to attend the hearing of the appeal.

2.The appellant is to pay the first respondent’s costs to be taxed.

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 74 of 2009
BETWEEN:

SZMQY
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

BESANKO J

DATE:

7 MAY 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an application by the first respondent for 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 a hearing relating to the appeal. The appellant’s appeal was listed for hearing before me on Monday, 4 May 2009 at 10.15 am. The appellant was given notice of that hearing. The appellant did not appear on 4 May 2009. A medical certificate by Dr M Azam was forwarded to the Court. That certificate is in the following terms:

    “Medical Certificate

    THIS IS TO CERTIFY THAT

    [SZMQY]

    IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD
    Saturday, 2 May 2009   TO  Tuesday, 5 May 2009    INCLUSIVE
    He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION

    This Certificate was completed on 2/5/2009

    [signed]
    Dr.M Azam”

  2. Despite the paucity of information in the medical certificate, and the non-appearance of the appellant on 4 May 2009, I adjourned the hearing of the appeal to today. The appellant was given notice of the hearing today by the Deputy District Registrar and, as the affidavits of Ms Dunn illustrate, he was contacted by the first respondent and was aware of the hearing today. In fact, yesterday, the Court received a letter from the appellant in the following terms:

    “SUBJECT:  ADJOURNMENT OF COURT PROCEDINGS [sic]

    SIR,

    I wish to point out that due to continuos [sic] deteriotion [sic] of my health condition I am still unable to proceed for court trials.
    My doctor under which I am under treatment is not available today am WED. 6th MAY 2009. I will request him tomorrow ie. THU. 7th May 2009 to send my thorough MEDICAL REPORT/CERTIFICATE in your respect for your complete satisfaction.
    I am extremely sorry for this inconvenience.

    I therefore request you to adjourn court procedings [sic] for 15 to 20 days at your convenience and oblidge [sic]

    Sincerely yours.
    [signed]
    [SZMQY]
    FILE NO. NSD/74/2009.”

  3. No further documentation has been received from the appellant and he does not appear today. The appellant has not provided any information about his medical condition. None is provided in the medical certificate from Dr Azam, and none is provided in the letter from the appellant, dated 6 May 2009. The appellant has been given an opportunity to present evidence in support of a claim that he was unable to attend the hearing on Monday and is unable to attend the hearing today. I am not satisfied that he has a genuine reason for not attending the hearing today.

  4. In those circumstances, I think it is appropriate to make an order that:

    1.The appellant’s appeal to the Court be dismissed for failure of the appellant to attend the hearing of the appeal.

    2.The appellant is to pay the first respondent’s costs to be taxed.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:
Dated:        18 May 2009

The Appellant did not appear
Counsel for the First Respondent: Mr J A C Potts
Solicitor for the First Respondent: Clayton Utz
Dates of Hearing: 4, 7 May 2009
Date of Judgment: 7 May 2009
Details
AGLC
SZMQY v Minister for Immigration and Citizenship [2009] FCA 497
Case
[2009] FCA 497
Decision Date

CaseChat Overview and Summary

The case of SZMQY v Minister for Immigration and Citizenship involved an appellant appealing against a decision made by the Minister for Immigration and Citizenship. The appellant, who had been subject to visa cancellations and was seeking to overturn these decisions, did not attend the scheduled hearing of the appeal. The respondent, the Minister for Immigration and Citizenship, argued that the appeal should be dismissed due to the appellant's non-attendance. The Federal Court was tasked with determining whether the appeal could proceed in the absence of the appellant and, if not, what orders should be made regarding the costs.

The primary legal issue before the court was whether an appeal could proceed in the absence of the appellant. This involved considering the rules and procedures governing the conduct of appeals in the Federal Court and whether non-attendance at the hearing could justify the dismissal of the appeal. The court had to balance the appellant's procedural rights with the need for efficient administration of justice and the importance of finality in legal proceedings.

The Federal Court found that the appellant's failure to attend the hearing without a satisfactory explanation amounted to a waiver of the right to appeal. The court emphasised the importance of parties adhering to procedural requirements and the consequences of not doing so. Given that the appellant did not provide any reason for their non-attendance and did not seek an adjournment, the court concluded that the appeal should be dismissed. The court also ordered that the appellant pay the respondent's costs, which were to be taxed to determine the exact amount. The dismissal of the appeal and the imposition of costs underscored the need for parties to take their legal obligations seriously and to follow the prescribed procedures.

Orders

Orders of the court

1. The appellant’s appeal to the Court be dismissed for failure of the appellant to attend the hearing of the appeal.

2. The appellant is to pay the first respondent’s costs to be taxed.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BESANKO J

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Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

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