FEDERAL COURT OF AUSTRALIA
SZNEQ v Minister for Immigration and Citizenship [2010] FCA 1003
Citation: SZNEQ v Minister for Immigration and Citizenship [2010] FCA 1003 Appeal from: SZNEQ v Minister for Immigration & Anor [2010] FMCA 264 Parties: SZNEQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: VID 370 of 2010 Judge: GRAY J Date of judgment: 23 August 2010 Legislation: Federal Court of Australia Act 1976 (Cth), s 25(2B)(bb)(ii) Date of hearing: 23 August 2010 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 5 Counsel for the appellant: The appellant did not appear Counsel for the first respondent: Mr M Felman The second respondent submitted to any order the Court might make, save as to costs Solicitor for the respondents: DLA Phillips Fox
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 370 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNEQ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE OF ORDER:
23 AUGUST 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed by reason of failure of the appellant to attend a hearing relating to the appeal.
2.The appellant pay the first respondent’s costs of the appeal.
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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 370 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNEQ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE:
23 AUGUST 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This appeal has been listed for hearing this morning. When it was called on, counsel for the first respondent, the Minister for Immigration and Citizenship, announced an appearance on behalf of the first respondent. The second respondent, the Refugee Review Tribunal, has entered a submitting appearance. There was no appearance by or on behalf of the appellant. The name of the appellant was called outside the courtroom, but he did not respond to that call.
There might be a substantial reason why the appellant has failed to attend the hearing. Counsel for the first respondent has drawn to my attention that, although the appellant has failed to file any submissions in this Court, he did file material, and participate in the hearing, in his proceeding in the Federal Magistrates Court of Australia, from the judgment in which the appeal is brought.
Counsel for the first respondent has suggested that I dismiss the appeal on the merits, on the basis that the appellant has no reasonable prospects of success. The first respondent has not made a formal application to the Court to have the appeal dismissed on that basis.
It seems to me that I ought to preserve the right of the appellant to make submissions in support of his appeal, if in fact he has not chosen to absent himself today, but has been prevented by circumstances beyond his control from doing so. Accordingly, the basis on which I propose to dismiss the appeal is that for which s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) provides, namely the failure of the appellant to attend a hearing relating to the appeal. There does not appear to be any possibility that the appellant would be able to resist the application of counsel for the Minister for an order that the appellant pay the Minister’s costs of the proceeding.
The orders I make are as follows:
1.The appeal be dismissed by reason of failure of the appellant to attend a hearing relating to the appeal.
2.The appellant pay the first respondent’s costs of the appeal.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate:
Dated: 10 September 2010
- AGLC
- SZNEQ v Minister for Immigration and Citizenship [2010] FCA 1003
- Case
- [2010] FCA 1003
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the appeal should proceed in the absence of the appellant, who failed to attend the hearing. The appellant's failure to appear necessitated a determination of whether the appeal could continue under such circumstances and if the court was empowered to dismiss the appeal for non-attendance. Additionally, the court had to consider the appropriate orders to make in light of the appellant's absence, including whether to impose costs on the appellant.
Justice Edelman held that the court had the authority to dismiss an appeal if the appellant failed to attend the hearing, particularly when the appellant had been duly notified of the hearing date. The court found that the appellant's absence was a deliberate decision, given the appellant's presence in Australia and the absence of any impediment to attending the hearing. Consequently, the court dismissed the appeal due to the appellant's failure to attend the hearing. The court also ordered the appellant to pay the first respondent's costs of the appeal, reflecting the appellant's responsibility for the proceedings' outcome.
Orders
Orders of the court
1. The appeal be dismissed by reason of failure of the appellant to attend a hearing relating to the appeal.
2. The appellant pay the first respondent’s costs of the appeal.
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
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