SZOMV v Minister for Immigration and Citizenship

[2011] FCA 179

FEDERAL COURT OF AUSTRALIA

SZOMV v Minister for Immigration and Citizenship [2011] FCA 179

Citation:		SZOMV v Minister for Immigration and Citizenship [2011] FCA 179
Appeal from:		SZOMV v Minister for Immigration & Anor [2010] FMCA 768
Parties:		SZOMV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 1140 of 2010
Judge:		JAGOT J
Date of judgment:		1 March 2011
Catchwords:		PRACTICE AND PROCEDURE – dismissal of migration appeal with costs due to appellant’s failure to appear
Legislation:		Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)
Date of hearing:	1 March 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	6
Counsel for the Appellant:	The appellant did not appear
Solicitor for the Respondents:	Ms L Buchanan of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1140 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOMV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	1 MARCH 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal as agreed or 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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1140 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOMV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE:	1 MARCH 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court in the matter of SZOMV v Minister for Immigration & Anor [2010] FMCA 768. On 6 October 2010 the Federal Magistrates Court made orders as follows:

   (1)The proceeding before the Court, commenced by way of application filed 29 June 2010, is dismissed.

   (2)The applicant pay the costs of the first respondent fixed in the amount of $4,700.

2. The appeal to this Court was filed on 22 October 2010 and identified three grounds of appeal as follows:

   (1)The decision made by the Refugee Review Tribunal involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.

   (2)The Federal Magistrates Court failed to consider that there was no evidence or other materials to justify the decision made by the Refugee Review Tribunal.

   (3)The Federal Magistrates Court failed to consider that the Refugee Review Tribunal cannot make such a judgment without any further investigations.

3. When the matter was called for hearing this morning, Ms Buchanan, a solicitor, appeared on behalf of the Minister for Immigration and Citizenship; however, there was no appearance on behalf of the appellant. Ms Buchanan applied for the proceeding to be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act).  This section provides that a single Judge, or a Full Court, may make an order that an appeal to the Court be dismissed for failure of the appellant to attend a hearing relating to the appeal.

4. Ms Buchanan tendered two letters from her office to the appellant.  The first is a letter of 18 November 2010, in which Ms Buchanan served a sealed copy of the Appeal Book.  In the same letter, Ms Buchanan said as follows:

   We remind you that your appeal is listed for hearing at 10.15 am on 1 March 2011 before Justice Jagot at the Federal Court, Law Courts Building, Queen Square, Sydney. 

   Please note should you fail to appear on the above date, orders may be sought that your appeal be dismissed with costs.

5. In the second letter, dated 24 February 2011, Ms Buchanan served on the appellant a sealed copy of the Minister’s submissions.  Again this letter contained statements as follows:

   We remind you that your appeal is listed for hearing at 10.15 am on 1 March 2011 before Justice Jagot at the Federal Court, Law Courts Building, Queen Square, Sydney. 

   Please note should you fail to appear on the above date, orders may be sought that your appeal be dismissed with costs.

6. As noted, the matter was called for hearing this morning. There has been no appearance by the appellant. I consider that, in the circumstances I have described, I should make an order pursuant to s 25(2B)(bb)(ii) of the Federal Court Act dismissing the appeal with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:        1 March 2011