FEDERAL COURT OF AUSTRALIA SZCAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 779 SZCAJ & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 284 OF 2005 EMMETT J 26 MAY 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD284 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZCAJ FIRST APPELLANT SZCAK SECOND APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 26 MAY 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the appeal be dismissed; 2. the appellants pay the respondent's costs of the appeal in the sum of $2,000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD284 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZCAJ FIRST APPELLANT SZCAK SECOND APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE: 26 MAY 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellants are husband and wife. They claim to be citizens of Mongolia. They arrived in Australia on 8 April 2002. On 20 May 2002, the appellants lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) ('the Act'). On 28 June 2002, a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister'), refused to grant a protection visa. On 15 July 2002, the appellants applied to the Refugee Review Tribunal ('the Tribunal') for a review of that decision. On 14 October 2003, the Tribunal affirmed the decision not to grant protection visas. The appellants then commenced a proceeding in the Federal Magistrates Court of Australia, claiming Constitutional writ relief in respect of the Tribunal's decision. The ground specified in that application was as follows: 'The Tribunal erred in law by not accepting the fact that there are illegal persecutions in Mongolia. Although in the Constitution citizens are granted rights of freedom of speech, assembly but in fact it is only on paper in Mongolia.' 2 On 4 February 2005, Driver FM ordered that the application be dismissed and ordered the appellants to pay the Minister's costs in the sum of $3,000. On 24 February 2005, the appellants filed a notice of appeal to this Court from the orders of the Federal Magistrates Court. The ground stated in the notice of appeal is as follows: 'This application is on the subject of review of the Federal Magistrates Court decision on dismissing an application for judicial review of the Refugee Review Tribunal decision made on 14.10.2003.' 3 The matter came before me for directions on 13 April 2005, when one of the appellants appeared in person. On that day, I directed the appellants to file and serve any amended grounds of appeal and any evidence upon which it was intended to rely no later than 4 May 2005. I directed the appellants to file and serve written submissions five days prior to the hearing date. Neither an amended notice of appeal nor submissions were filed. 4 On 18 May 2005, the Minister wrote to the appellants, at the address provided by them, informing the appellants that the matter was listed for hearing today and that if there was a failure to attend the Minister would ask the Court to dismiss the application with costs. 5 When the matter was called on for hearing today there was no appearance for the appellants. The Minister has therefore asked for an order pursuant to s 25(2B)(bb)(ii) that the appeal be dismissed. That section relevantly provides: '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.' 6 On 4 September 2003, the Tribunal wrote to the appellants advising that it had considered all the material before it, but was unable to make a favourable decision on that information alone. The Tribunal invited the appellants to give oral evidence and present arguments at a hearing fixed for 14 October 2003. On 8 October 2003, the Tribunal was advised in writing that the appellants did not wish to give any oral evidence and consented to the Tribunal proceeding to make a decision without taking any further action to allow or enable them to appear before it. 7 The Tribunal then dealt with the claims made by the male applicant. The Tribunal considered that, in the absence of any details as to those claims, it was not able to accept that the male appellant was a member of an opposition political party, as he claimed. The reasons of the Federal Magistrate dealt with the unparticularised claims made in the application to that Court. 8 On the face of the material before this Court, there appears to be no error either on the part of the Tribunal or on the part of the Federal Magistrates Court. It follows that the application by the Minister should be granted and the appeal should be dismissed. 9 The Minister asks for costs in the sum of $2,000 pursuant to O 62 r 4(2)(c), which provides that where the Court orders that costs be paid to any person, the Court may further order that, as to the whole or any part of the costs specified in the order, the person should be entitled to a gross sum specified in the order. In the interests of avoiding further costs incurred by a taxing bill of costs, it seems to me to be appropriate to accede to the Minister's request to make an order pursuant to that provision. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 10 June 2005 No appearance for the Appellants Solicitor for the Respondent: Clayton Utz Date of Hearing: 26 May 2005 Date of Judgment: 26 May 2005