SZTGE v Minister for Immigration and Border Protection
[2014] FCA 1205
•7 November 2014
FEDERAL COURT OF AUSTRALIA
SZTGE v Minister for Immigration and Border Protection [2014] FCA 1205
Citation: SZTGE v Minister for Immigration and Border Protection [2014] FCA 1205 Appeal from: SZTGE v Minister for Immigration & Anor [2014] FCCA 1458 Parties: SZTGE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 784 of 2014 Judge: JACOBSON J Date of judgment: 7 November 2014 Date of hearing: 7 November 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 10 Counsel for the Appellant: The appellant did not appear Counsel for the Respondents: Ms S Given Solicitor for the Respondents: Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 784 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTGE
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
7 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
(1)Pursuant to rule 36.75 of the Federal Court Rules 2011 the appeal be dismissed.
(2)The appellant pay the respondents’ costs
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 784 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTGE
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JACOBSON J
DATE:
7 NOVEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from orders of the Federal Circuit Court made by Driver J on 8 July 2014 dismissing an application for review of a decision of the Refugee Review Tribunal dated 14 August 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.
When the matter was called on for hearing at 10.15 am this morning there was no appearance by the appellant. Ms Given, who appears for the Minister, invited me to exercise my power to dismiss the appeal by reason of the failure of the appellant to appear. It seemed to me that it was appropriate to stand the matter down for a short period so that inquiries could be made to perhaps assist the appellant. This was because the evidence on which Ms Given relied indicated that there might possibly be some confusion on the part of the appellant as to the courtroom in which the appeal would be heard.
The evidence establishes that three letters have been sent to the appellant. The first letter was dated 8 September 2014. It was sent from the Court to the appellant at the address specified in the Notice of Appeal as her address for service. The letter stated that the judge allocated to hear the appeal was Foster J and that the date and time of hearing would be 7 November 2014 at 10.15 am. The place was described as the Law Courts Building. Importantly, the letter stated that the courtroom allocated for the hearing would be shown on a noticeboard in the foyer on the ground floor of the Law Courts Building as well as on a noticeboard on the level on which the courtroom is located.
The second letter was also sent by the Court to the appellant at her specified address. The letter was dated 16 October 2014 and informed the appellant that there was a change of the judge allocated to hear the appeal. The letter stated that the hearing would be before me, otherwise the information stated in the letter was precisely the same as in the initial letter of 8 September 2014. The letter included the notation to which I have referred, namely that the courtroom allocated for the hearing would be shown on noticeboards as described in the letter.
The third letter was sent by the appellant’s solicitors. It was dated 29 October 2014. It was sent to the appellant’s address and stated that the matter was listed for hearing on 7 November 2014 at 10.15 am before me at the Federal Court of Australia “Courtroom 12B, Law Courts Building, Queen Square, Sydney, NSW”. It was for this reason that it seemed to me that the appellant may be under a misapprehension as to the location of the particular courtroom. However, in the last 40 minutes or so considerable efforts have been made to locate the appellant in the building. In particular, the matter was called outside the court and the court officer has attended on Level 12 of the building as well as in the registry but she was unable to locate the appellant.
It seems to me that in these circumstances it is appropriate to exercise the power conferred on me under Rule 36.75 of the Federal Court Rules 2011 to dismiss the appeal in the absence of the appellant. In doing so I have taken into account a number of matters. Importantly, all of the notifications to the appellant of the listing of the appeal state that the appeal is to be heard in the Federal Court in this building.
Whilst the appellant is apparently not fluent in English, all of the notifications were sent well in advance of the hearing date and she ought to have had sufficient opportunity to have the letters translated if that were necessary. I also take into account the fact that the appellant has previously attended the building. She has filed documents in the Federal Court registry located in this building. The same registry is used by the Federal Circuit Court and it seems to me that the appellant ought therefore to be aware of the location of the building and of the existence of the court registry if she were in any doubt as to the precise courtroom where the appeal was to be heard.
Moreover, as Ms Given has pointed out, her firm has not received any letter or other indication from the appellant that she would not be in attendance this morning. Additionally, Ms Given has undertaken to inform the appellant of the orders dismissing the appeal under the Rules of the Court. The relevant rule provides that if an appeal is dismissed because the applicant in the appeal was absent, the applicant may apply to the Court for an order setting aside the dismissal and for the further conduct of the appeal.
Ms Given has undertaken to notify the appellant of that rule. It is, of course, unfortunate that there is a typographical error in the letter of 29 October 2014. It is perhaps also ironic that the only issue which arose in this matter which was heard by the Federal Circuit Court judge was the existence of another error which his Honour regarded as no more than a typographical error. Nonetheless, it seems to me for the reasons that I have set out above that the error in the letter of 29 October 2014 should not have ultimately precluded the appellant from finding the courtroom this morning and I am therefore of the opinion that, as I have said, the appropriate course is to exercise my power under rule 36.75 of the Rules.
Accordingly, the orders I will make this morning are first that pursuant to rule 36.75 the appeal be dismissed and second that the appellant pay the respondents’ costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 7 November 2014
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