SZQLJ v Minister for Immigration and Citizenship

[2012] FCA 456

FEDERAL COURT OF AUSTRALIA

SZQLJ v Minister for Immigration & Citizenship [2012] FCA 456

Citation:		SZQLJ v Minister for Immigration & Citizenship [2012] FCA 456
Appeal from:		SZQLJ v Minister for Immigration and Citizenship & Anor [2011] FMCA 932
Parties:		SZQLJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 2333 of 2011
Judge:		KATZMANN J
Date of judgment:		30 April 2012
Legislation:		Federal Court Act 1976 (Cth) ss 25(2B)(bb), 43(3(d) Federal Court Rules 2011 (Cth) rr 36.75, 40.02
Date of hearing:	30 April 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	9
Counsel for the Appellant:	No appearance by the appellant.
Solicitor for the First Respondent:	Mr O Jones of Clayton Utz
Solicitor for the Second Respondent:	The second respondent filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2333 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZQLJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	30 APRIL 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs in the sum of $1,465.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2333 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZQLJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	KATZMANN J
DATE:	30 APRIL 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

1. The appellant applied for a protection visa.  A delegate of the Minister for Immigration and Citizenship refused the application.  The appellant applied to the Refugee Review Tribunal for a review of that decision but the tribunal affirmed the delegate’s decision.  The appellant then applied to the Federal Magistrates Court for constitutional writs but the application failed.  She now appeals to this Court.

2. The appeal was filed on 22 December 2011 and was listed for hearing at 10.15 am today.  The appellant was notified of the hearing by letter from the Court on 21 March 2012 at the address for service given on the notice of appeal.  The letter from the Court informed the appellant that, if she or her legal representative did not appear at the time specified for the hearing, orders (including an order as to costs) could be made in her absence.  At 10.15 this morning, the appellant did not appear.  The matter was called at approximately 10.50 am and once again there was no appearance. 

3. The first respondent (“the Minister”) seeks an order pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) (“the Rules”) that the appeal be dismissed. Rule 36.75 provides that if a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for such an order. Section 25(2B)(bb) of the Federal Court Act 1976 (Cth) (“the Act”)  gives the Court the power to make that order.

4. I am satisfied that the appellant was aware of the time and date for hearing, and that it is appropriate for such an order to be made.  Not only was the appellant apprised of the hearing by reason of the Court’s letter of 21 March 2012, but the respondent has sent a series of letters to the appellant at her address for service, dated 27 March 2012, 23 April 2012 and 26 April 2012. 

5. Of course, it is entirely possible, in fact, highly likely, that the appellant was unable to read or understand the contents of the correspondence, but the appeal book shows that she has received other documents in English, that she had a migration agent and that she has contacts in the community to whom she can refer any such documents. 

6. In all the circumstances, the power vested in the Court to dismiss the appeal for want of appearance should be exercised.  Accordingly, I make that order.  The appeal is therefore dismissed.

7. The Minister has applied for costs in a lump sum. The application is made pursuant to r 40.02 of the Rules. The application is for a sum of $1704, supported by an affidavit of Oliver Jones, sworn 26 April 2012. The affidavit indicates that the proposed lump sum is approximately 75 per cent of the actual professional costs incurred to the date of swearing of the affidavit, together with an extra $930 estimated as likely to be incurred after that date.

8. By section 43(3)(d) of the Act, the Court is empowered to award a party costs in a specified sum.  I am satisfied, on the basis of the matter set out in Mr Jones’ affidavit, that such an order should be made.  However, I am not satisfied that the lump sum proposed is the amount in which the order should be made, and that is because the sum proposed is calculated on the basis that there may be a separate attendance for the delivery of judgment in the event that judgment is reserved.  Accordingly, I invited Mr Jones to indicate to me a suitable sum to reflect the fact that judgment has not been reserved, and he proposed a sum of $1,465.  I am prepared to make an order for costs in that sum. 

9. I therefore order that the appellant pay the first respondent’s costs in the sum of $1,465.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:

Dated:       3 May 2012