FEDERAL COURT OF AUSTRALIA SZGBG v Minister for Immigration and Citizenship [2007] FCA 228 SZGBG v MINISTER FOR IMMIGRATION AND CITIZENSHIP NSD 1889 OF 2006 LINDGREN J 21 FEBRUARY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1889 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGBG Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: LINDGREN J DATE OF ORDER: 21 FEBRUARY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The name of the first respondent be amended to read 'Minister for Immigration and Citizenship'. 2. The appeal be dismissed. 3. The appellant pay the costs of the first respondent of the appeal. 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 1889 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGBG Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: LINDGREN J DATE: 21 FEBRUARY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant appeals against a judgment of the Federal Magistrates Court of Australia given on 7 September 2006 ([2006] FMCA 1350) by which that Court dismissed the appellant's application for review of a decision of the second respondent, the Refugee Review Tribunal ('the Tribunal'), which has filed a submitting appearance on this appeal. By a Decision Record signed on 21 February 2005 and handed down on 11 March 2005, the Tribunal had affirmed a decision of a delegate of the first respondent (respectively, 'the Delegate' and 'the Minister') not to grant a protection visa to the appellant. The appellant had applied to the Tribunal for review of the Delegate's decision. 2 The appellant arrived in Australia on 21 October 2004. He is a national of the People's Republic of China. He applied for the protection visa on 1 November 2004 claiming to have a well founded fear of persecution on the ground of religion. The Delegate refused to issue the visa on 22 November 2004, which led the appellant to make his application to the Tribunal on 22 December 2004. 3 The appellant did not appear before the Tribunal at the hearing that it conducted on 21 February 2005. He had been notified of the hearing before the Tribunal by a letter dated and sent to him on 13 January 2005 at the address that he had given as his "mailing address" and "address for service" in his application for review to the Tribunal. That address was a post office box number. 4 The Tribunal also sent to the appellant, addressed to him care of the same post office box number, a letter dated 21 February 2005 advising him that the Tribunal's decision would be handed down on 11 March 2005, and a letter dated 11 March 2005 enclosing a copy of the Decision Record that had been handed down that day. 5 The appellant gave, in his form of application commencing the proceeding in the Federal Magistrates Court, two addresses, one being a residential address and the other being again the same post office box number. 6 The appellant appeared on the hearing in that Court. 7 The form of application to the Federal Magistrates Court raised only one ground of review, namely, that the Tribunal had failed to comply with its obligation under the Migration Act 1958 (Cth) ('the Act') and had denied the appellant "procedural fairness". The Federal Magistrate, correctly in my view, took this to be a reference to the fact that the Tribunal had proceeded with the hearing in the absence of the appellant. The Federal Magistrate referred to ss 441A(4)(a), 441C(4) and 426A of the Act, and concluded that the Tribunal had been entitled to proceed with the hearing as it had done. 8 In his notice of appeal to this Court, the appellant gave only a residential address, although a different one from the one he had given in his application to the Federal Magistrates Court. On 20 December 2006 the solicitors for the Minister wrote to the appellant at the address that he had given in his notice of appeal, advising him of the hearing fixed for today at 2.15 pm. Again, on 16 February 2007 the solicitors wrote to the appellant at the same address enclosing a copy of the Minister's outline of submissions and reminding the appellant of the fixture for today at 2.15 pm and indicating the courtroom in which the hearing would take place. 9 The appellant has not appeared today and it is now 2.35 pm. The appeal should be dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 12 March 2007 The Appellant did not appear Solicitor for the Respondent: Ms T Quinn, DLA Phillips Fox Date of Hearing: 21 February 2007 Date of Judgment: 21 February 2007