SZDZS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1131

FEDERAL COURT OF AUSTRALIA

SZDZS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1131 SZDZS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 899 of 2005 WILCOX J 5 AUGUST 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 899 of 2005

BETWEEN: SZDZS

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 5 AUGUST 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The notice of motion filed by the appellant on 20 July 2005 be dismissed. 2. The appellant pay the respondent's costs of the motion fixed at $300. 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 NSD 899 of 2005

BETWEEN: SZDZS

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE: 5 AUGUST 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX J: 1 There is before the Court a notice of motion filed by the appellant on 20 July 2005 seeking an order setting aside an order made by me on 8 July 2005. On that day, I made an order dismissing, under Order 10 rule 1 of the Federal Court Rules, an appeal that had been filed by the appellant against orders made by Federal Magistrate Scarlett on 24 May 2005. 2 The Federal Magistrate gave a judgment on 24 May 2005 in which he dismissed an application for review of a decision of the Refugee Review Tribunal ('the Tribunal'). The order of 8 July 2005 was made because the appellant did not attend a directions hearing appointed for that day. 3 In dismissing the appeal with costs I added the following order: '3. No application to set aside this order shall be filed unless it is accompanied by an amended notice of appeal identifying, with precision, the alleged jurisdictional error or errors of the Refugee Review Tribunal.' 4 On 20 July 2005, the appellant filed the present notice of motion and also an affidavit in which he gave an explanation of his failure to attend the directions hearing at the appointed time. He said he caught the wrong train and was taken to Milsons Point station. As he was apparently travelling from south of the city I do not understand how the wrong train caused him a problem. The train would have come through the city. However I am prepared to deal with the matter upon the basis that a satisfactory explanation of the appellant's non-attendance has been provided. The matter of greater concern to me is whether the appellant has identified an arguable ground of appeal. 5 The notice of motion was accompanied by a proposed amended notice of appeal. It contained only one ground of appeal as follows: 'The Refugee Review Tribunal was in breach of section 425(1) of the Migration Act, which says that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments.' 6 There is no question about the obligation of the Tribunal. The appeal book prepared for the Federal Magistrate's Court includes a copy of a purported letter sent to the appellant, at his notified residential address, on 8 April 2004. The letter invited him to a hearing before the Tribunal at 10.30 a.m. on Friday, 14 May 2004. A copy of the letter was sent to a nominated person at an address in Sussex Street, Sydney. This address had been notified by the appellant in his application for review, as his address for service of notices. It appears the appellant returned the form provided by the Tribunal marked up to indicate that he proposed to attend the hearing. This form also identified the nominated person as the appellant's authorised recipient. 7 The Federal Magistrate's Court book also contains a purported letter from the nominated person to the Tribunal, dated 13 May 2004, in which he stated that the appellant, and another person: 'have notified me that they were not going to attend the interview organised by RRT.' 8 The appellant did not attend the appointed hearing. The Tribunal dealt with the matter on the basis of the documentary material available to it and affirmed the decision of the Minister's delegate to refuse to grant a protection visa. 9 The mentioned documents suggest the appellant might have had a problem, if he had raised an issue, at the hearing of this matter in the Federal Magistrates Court, as to whether or not the Tribunal had complied with s 425 of the Migration Act. If he had raised that issue there, it would, no doubt, have been necessary for him to give some evidence about the letters. Perhaps other witnesses would also have needed to give evidence. 10 However, the appellant did not raise any issue of this nature before the magistrate. He put other arguments, which the magistrate considered and rejected. No issue is now raised about any of these arguments. 11 It would not be appropriate for a judge, exercising the jurisdiction of the Full Court, to consider a new ground of appeal whose resolution would require the provision of additional evidence. It would be futile for me to set aside the order of dismissal in order merely to allow this ground to be pursued. 12 The order that I make is that the notice of motion filed by the appellant on 20 July 2005 be dismissed. I order the appellant to pay the respondent's costs of the motion fixed at $300. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.