SZQQL v Minister for Immigration and Citizenship

[2012] FCA 518

FEDERAL COURT OF AUSTRALIA

SZQQL v Minister for Immigration and Citizenship [2012] FCA 518

Citation:

SZQQL v Minister for Immigration and Citizenship [2012] FCA 518

Appeal from:

SZQQL v Minister for Immigration and Citizenship [2012] FMCA 138

Parties:

SZQQL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

File number:

NSD 433 of 2012

Judges:

BUCHANAN J

Date of judgment:

16 May 2012

Catchwords:

PRACTICE AND PROCEDURE – no appearance by the appellant – appeal dismissed pursuant to r 36.75(1)(a)(i)

COSTS – lump sum order for costs

Legislation:

Federal Court Rules 2011

Date of hearing:

16 May 2012

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

5

Counsel for the Appellant:

The appellant did not appear.

Solicitor for the First Respondent:

Clayton Utz

Solicitor for the Second Respondent:

The second respondent submitted save as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 433 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQQL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	16 MAY 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed for lack of attendance by the appellant.

2.The appellant is to pay the first respondent’s costs assessed overall at $2,000.

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 433 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQQL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	16 MAY 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of the Federal Magistrates Court of Australia.  The Federal Magistrates Court of Australia dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal.  The decision of the Refugee Review Tribunal affirmed a decision of a delegate of the Minister to refuse an application by the appellant for a protection visa.

2. When the matter was called on for hearing today, there was no appearance by the appellant at the appointed time.  The matter was stood down to see if the appellant might appear, albeit after the appointed time.  When the matter resumed, there was still no appearance by the appellant. 

3. Mr Jones, who appeared for the Minister, has applied that the appeal be dismissed and an order be made for costs in a lump sum. The application to dismiss the appeal is made relying upon rule 36.75 of the Federal Court Rules 2011 which provides, relevantly, by sub-rule 1(a)(i), that if a party is absent when an appeal is called on for hearing, and that party is the appellant, the opposing party may apply for the appeal to be dismissed.  In the circumstances, in my view, the Minister is entitled to make such an application and I see no reason why the application should not be granted.

4. The application for lump sum costs relies upon an affidavit, which I permitted to be filed in Court, deposing to the fact that the Minister has, to date, incurred $2,332 in professional costs and will incur a further $620 in professional costs.  The amount sought as a lump sum order for costs is $2,000, which is approximately 65 per cent of the costs incurred and to be incurred.  As there is no appearance for the appellant, there is no question of any lack of time and opportunity to deal with the contents of the affidavit.  Should an occasion arise in the future to consider an application to set aside the order which I will make dismissing the appeal, then an opportunity would no doubt arise at the same time to challenge any costs order which I might, at the moment, make.  In the circumstances, I am satisfied that a proper case has been made out, in the circumstances of this particular case, for a lump sum order for costs in the amount of $2,000.

5. The orders which I make are:

   (1)The appeal is dismissed for lack of attendance by the appellant.

   (2)The appellant is to pay the first respondent’s costs assessed overall at $2,000.

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:       18 May 2012