SZLQU v Minister for Immigration and Citizenship [2008] FCA 949

FEDERAL COURT OF AUSTRALIA

SZLQU v Minister for Immigration and Citizenship [2008] FCA 949

SZLQU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 328 of 2008

GRAHAM J

22 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 328 of 2008

BETWEEN: SZLQU

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 22 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Orders that the application for leave to appeal filed 10 March 2008 be dismissed. 2. Orders that the applicant pay the respondent Minister's costs fixed in the sum of $830.00. 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 328 of 2008

BETWEEN: SZLQU

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 22 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The matter presently before the Court is an Application for Leave to Appeal from a judgment of Smith FM given on 19 February 2008 in the Federal Magistrates Court of Australia. That Application for Leave to Appeal was filed 10 March 2008 in this Court and supported by an affidavit of the applicant of 10 March 2008 to which a draft Notice of Appeal was attached. 2 The applicant, whose name has been called outside the Court three times together with the pseudonym by which he is known for the purpose of these proceedings, has not appeared today and, in the circumstances, the affidavit cannot be before me. I note, however, that the draft Notice of Appeal, which is attached, is in a form with which the Court has become familiar in recent days. It is one of a number of cases where what one might call a boilerplate Notice of Appeal has been relied upon. The grounds recorded in paragraphs 2, 3 and 4 of the draft Notice of Appeal are identical in every case save for the inclusion of the date on which the relevant hearing took place before the relevant Federal Magistrate; otherwise the typographical errors included in the grounds are the same in every case. 3 The Federal Magistrates Court Rules 2001 (Cth) relevantly include rules 44.12(1) and (2) which provide: '44.12(1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; … … (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.' 4 Under s 24(1A) and s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) it was open to the applicant to appeal from the judgment of the learned Federal Magistrate but only if the Court or a Judge of a Court gave leave to appeal. The application presently before the Court seeks such leave to appeal. 5 I note from the reasons for judgment of the learned Federal Magistrate given in respect of an application for constitutional writ relief, which was filed in the Federal Magistrates Court of Australia on 19 November 2007, that the Refugee Review Tribunal ('the Tribunal') communicated with the applicant by letter 19 July 2007 inviting him to a hearing before the Tribunal on 5 September 2007. The letter informed the applicant that the Tribunal was unable to make a decision favourable to him on the information then available to it. It invited him to attend a hearing at which he might give evidence and present arguments in support of his case for review of the Minister's delegate's decision to refuse his application for a protection visa. The applicant did not attend the Tribunal hearing and made no contact with the Tribunal. 6 When the applicant was before the learned Federal Magistrate he indicated that he was 'not well' at the time of the Tribunal hearing but conceded that he had not tried to contact the Tribunal. His Honour considered that the application did not raise an arguable case for relief and accordingly dismissed it in accordance with the powers conferred by rule 44.12(1)(a). The orders made by the learned Federal Magistrate included an order that the applicant pay the respondent Minister's costs in the sum of $1,900.00. 7 Order 35A rules 2 and 3 of the Federal Court Rules relevantly provide: '2(1) For this Order, an applicant is in default if the applicant: … (f) fails to prosecute the proceeding with due diligence. … 3(1) If an applicant is in default, the Court may order that: (a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; … …' 8 It seems to me that the failure of the applicant to appear today falls within the expression 'fails to prosecute the proceeding with due diligence' within the meaning of Order 35A rule 2(1)(f). Whilst there are various powers available to the Court in circumstances of default, such as have as occurred, it seems to me that the proper order is that the application presently before the Court should be dismissed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.