SZONY v Minister for Immigration and Border Protection
[2018] FCA 666
•10 May 2018
FEDERAL COURT OF AUSTRALIA
SZONY v Minister for Immigration and Border Protection [2018] FCA 666
Appeal from: SZONY v Minister for Immigration & Anor [2017] FCCA 2986 File number: NSD 2074 of 2017 Judge: ALLSOP CJ Date of judgment: 10 May 2018 Legislation: Federal Court Rules 2011 (Cth), r 36.74 Date of hearing: 10 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 4 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Australian Government Solicitor ORDERS
NSD 2074 of 2017 BETWEEN: SZONY
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
10 MAY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs for want of appearance pursuant to r 36.74(1)(c) of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)ALLSOP CJ:
In this matter the appellant appeals against the orders of the Federal Circuit Court that dismissed her application for judicial review with costs. Those orders were made on 10 November 2017. The appellant is a citizen of the People’s Republic of China and has made claims based on her practising of Falun Gong. Her claims were rejected by a delegate of the Minister and by the Tribunal. The rejection of her claims by the Tribunal was comprehensive, although briefly expressed. In essence, the Tribunal did not believe her evidence and found that the appellant was not a Falun Gong practitioner, nor has ever been.
The matter was programmed for hearing pursuant to directions made in March 2018. By emails in April, which are on the court file, the matter was listed before me at 10:15am today. The emails were sent to the appellant’s email address contained on the notice of appeal. There was also an address (a post office box address) in New South Wales to which, on 3 May, the Australian Government Solicitor sent a letter reminding the appellant that the hearing was at 10:15am today and indicating that if she or a lawyer on her behalf did not appear orders would be sought that her appeal be dismissed with costs without further notice.
The matter was listed at 10:15am. I did not come on the bench until 10:35am because no one had appeared. In the time before I came on the bench, with the assistance of a Mandarin interpreter and the solicitor for the first respondent, the mobile telephone number found also on the notice of appeal was rung to no response. My associate then, some 15 minutes later, rang the same number and there was no response. In these circumstances an order is sought under r 36.74(1)(c) of the Federal Court Rules 2011 (Cth) dismissing the appeal for want of appearance with costs. I am prepared to make that order.
Should there be an application for a re-institution of the appeal, the appellant will need not only to explain her non-appearance but also, in some coherent fashion, explain why it is that the Tribunal’s reasons should be set aside. This is not merely a matter of disagreeing with the outcome. But, in effect, the appellant must persuade the Court that there is a reasonable argument that the Tribunal failed to fulfil its task adequately in assessing her material. For those reasons, the orders of the Court are that the appeal be dismissed with costs for want of appearance pursuant to r 36.74(1)(c) of the Federal Court Rules.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 11 May 2018
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