SZMXY v Minister for Immigration and Citizenship

[2009] FCA 995

FEDERAL COURT OF AUSTRALIA

SZMXY v Minister for Immigration and Citizenship [2009] FCA 995

SZMXY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 531 of 2009

GRAHAM J
19 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 531 of 2009

BETWEEN:

SZMXY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	19 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Orders that the appeal be dismissed.

2.Orders that the appellant pay the first respondent’s costs fixed in the amount of $2,875.

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
GENERAL DIVISION	NSD 531 of 2009

BETWEEN:

SZMXY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	19 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This appeal was fixed for hearing at 10:15am on Wednesday 19 August 2009.  When the matter was called, the appellant failed to appear.  Her name was called outside the court on three occasions as was the pseudonym by which she is known for the purposes of these proceedings.  An attempt was made by the solicitor for the first respondent to make contact by telephone with the appellant at the mobile telephone number recorded on the Notice of Appeal filed 5 June 2009, but that attempt at contact was unsuccessful.  I was informed by counsel for the respondent Minister that the telephone was not answered when the number was rung.

2. The papers reveal that the appellant was born in China in September 1962.  She arrived in Australia on 8 December 2007 having left China on 7 December 2007.  She travelled on a passport issued by the People’s Republic of China on 14 August 2006 and apparently entered Australia under a tourist visa. 

3. On 3 January 2008 she lodged an application for a Protection (Class XA) visa.  The Minister’s delegate refused the application on 25 March 2008.  The Tribunal member before whom the application for review of the Minister’s delegate’s refusal came referred to her claimed fear of being harmed in China for reason of her involvement with Falun Gong, a claim which she described in Convention terms, as one relating, most readily, relate to either her membership of a particular social group or a political opinion imputed to her. 

4. The appellant had applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the Minister’s delegate’s decision on 18 April 2008.  The appellant failed to attend on 3 July 2008 for a hearing before the Tribunal, but when notified of the intended handing down of the Tribunal’s decision, wrote a letter to the Tribunal seeking a hearing which was afforded to her on 25 August 2008. 

5. On 25 September 2008, the Tribunal member who heard the application for review affirmed the decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa. 

6. On 17 November 2008, the appellant applied to the Federal Magistrates Court of Australia for judicial review of the delegate’s decision.  On 15 May 2009, Smith FM ordered that the application be dismissed and that the applicant pay the first respondent’s costs in the sum of $5,500.  The appellant appeared in person when the proceedings were before the learned Federal Magistrate. 

7. On 5 June 2009, the appellant filed the Notice of Appeal in this Court.  As previously indicated she has failed to attend the hearing of her appeal.

   In the circumstances, I have been asked by counsel for the respondent Minister to make an order under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) which provides:

   ‘25(2B)           A single judge … may:

   …

   (bb)make an order that an appeal to the court be dismissed for:

   …

   (ii)failure of the appellant to attend a hearing relating in the appeal …’

8. The appellant apparently forwarded a communication by facsimile to the court on 18 August 2009, bearing date 17 August 2009, which indicated an inability to attend the hearing on 19 August 2009 ‘because of my medical problem’.  The communication did not include any facsimile number to which a return communication could be forwarded, even though the appellant’s communication was apparently by a facsimile. 

9. A medical certificate was attached, which included the name of the appellant.  It indicated, as I understand it, that she was suffering from a ‘viral infection’ which would render her unfit for duty from 14 August 2009 to 21 August 2009 inclusive.  Attempts have been made by the Court to advise the appellant that an appearance would be necessary for an adjournment to be secured.  Unfortunately, the only means of communicating with the appellant in the circumstances was by calling the mobile telephone number which she had provided in the Notice of Appeal.  It would appear that, when called on 18 August 2009, that number did not answer.  The same occurred again today.

10. The evidence is quite unsatisfactory in terms of explaining the absence of the appellant before the Court today. She apparently had no difficulty in recording a typed communication advising of her intended non-attendance yesterday, or perhaps on Monday 17 August, which she was able to prepare, sign and transmit to the Court at a time when she was said to be ‘unfit for duty’. In my opinion, it is a proper case in which the Court should exercise its power to make an order under s 25(2B)(bb)(ii) of the Federal Court Act.

11. Due to the failure of the appellant to attend the hearing of her appeal today, I order that the appeal be dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        19 August 2009

The Appellant did not appear.

Counsel for the First Respondent:	T Reilly
Solicitor for the First Respondent:	Sparke Helmore

The Second Respondent filed a submitting appearance.

Date of Hearing:	19 August 2009
Date of Judgment:	19 August 2009