SZNIK v Minister for Immigration and Citizenship

[2009] FCA 957

FEDERAL COURT OF AUSTRALIA

SZNIK v Minister for Immigration and Citizenship [2009] FCA 957

PRACTICE AND PROCEDURE – non-attendance by appellant at hearing of the appeal – appeal dismissed pursuant to s 25(2B)(bb)(ii).

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)
Federal Court Rules O 35 r 7

SZNIK v MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 577 of 2009

BUCHANAN J
19 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 577 of 2009

GENERAL DIVISION

BETWEEN: SZNIK
Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

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

THE COURT ORDERS THAT:

1.The appeal is dismissed with costs.

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 577 of 2009

GENERAL DIVISION

BETWEEN: SZNIK
Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

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

REASONS FOR JUDGMENT

BUCHANAN J:

1. This is an appeal against a judgment of the Federal Magistrates Court of Australia which dismissed an application for judicial review concerning a decision of the Refugee Review Tribunal constituted under the Migration Act 1958 (Cth). The appeal was first listed for hearing on 17 August 2009. On the morning on which the appeal was listed for hearing the appellant sent a facsimile transmission to the registry asserting that she had been ill the previous day, had seen a doctor and could not attend the hearing. A document was attached which was said to be a medical certificate. It was illegible. The appellant asked that the appeal be listed for hearing at some other time. There being no opposition from the Minister, I relisted the appeal for hearing on 19 August 2009.

2. When the appeal was called on 19 August 2009 there was, again, no appearance for the appellant. Mr Reynolds, who appeared for the Minister, has made an application that the appeal be dismissed as a result of the non-attendance of the appellant. He relies upon s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). In support of the application he called evidence from his instructing solicitor, Mr Conomos, which satisfies me that on 17 August 2009 Mr Conomos caused to be sent to the appellant by Express Post a letter advising her that her appeal had been relisted for hearing on 19 August 2009. I am also satisfied that Mr Conomos made efforts to contact the appellant by telephone on the mobile telephone number which she had nominated in the facsimile transmission sent to the registry on that day, that his telephone call was unanswered and that he left a message for the appellant advising her that the appeal had been relisted for hearing on 19 August 2009, leaving a telephone number where he could be contacted.

3. Accordingly, I am satisfied that the present is a suitable case to exercise the power to which Mr Reynolds has referred and that it is appropriate that the appeal be dismissed for that reason.  I take into account that it would be open to the appellant to apply to set aside the order which I propose to make under O 35 r 7 of the Federal Court Rules, provided the conditions attending any such application were satisfied.

4. The Minister also applied for costs.  There appears to be no reason why costs should not follow the event.  An order for costs is also a matter in respect of which the appellant may, if it is appropriate to do so, exercise her rights under O 35 r 7. 

5. The order which I make is that the appeal is dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        25 August 2009

Appellant did not appear.
Counsel for the First Respondent:	Mr P D Reynolds
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	17 & 19 August 2009
Date of Judgment:	19 August 2009