SZHUD v Minister for Immigration and Citizenship [2007] FCA 1303

FEDERAL COURT OF AUSTRALIA

SZHUD v Minister for Immigration and Citizenship [2007] FCA 1303

SZHUD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 424 OF 2007

MIDDLETON J

10 August 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 424 OF 2007

BETWEEN: SZHUD

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MIDDLETON J

DATE OF ORDER: 10 August 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The notice of motion filed on 14 June 2007 by the applicant be dismissed. 2. The applicant pay the costs of the first respondent. 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 424 OF 2007

BETWEEN: SZHUD

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MIDDLETON J

DATE: 10 August 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 By notice of motion and affidavit filed 14 June 2007 the applicant seeks to set aside the orders made by this Court on 7 May 2007. On 7 May 2007, the applicant's appeal was dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) ('the Act') because the applicant failed to attend the hearing. The applicant claims in his supporting affidavit that he nominated an incorrect address in the notice of appeal filed with the Court and therefore was unaware of the hearing date on 7 May 2007. 2 Some objections were made by the first respondent to certain parts of the supporting affidavit but I do not need to deal with such objections as I do not rely upon those parts in my reasons for the conclusion of this matter. 3 Section 25(2B)(bb)(ii) of the Act confers a power on the Court to dismiss an appeal for failure of the appellant to attend the hearing. Section 25(2B)(bc) of the Act empowers the Court, where an appropriate basis has been made out, to set aside an order which has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default. 4 On this application I need to consider two matters: (a) whether the applicant has an arguable case; and (b) whether the applicant has provided a satisfactory explanation for non-attendance. I refer generally to the discussion in SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 per Jacobson J.