SZLYV v Minister for Immigration and Citizenship [2008] FCA 1847

FEDERAL COURT OF AUSTRALIA

SZLYV v Minister for Immigration and Citizenship [2008] FCA 1847

SZLYV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1577 of 2008

GRAHAM J

27 NOVEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1577 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLYV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 27 NOVEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) 2. The appellant pay the respondent Minister's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1577 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLYV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 27 NOVEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter is before the Court today following the filing by the appellant, who is identified for the purposes of these proceedings as 'SZLYV', of a Notice of Appeal on 8 October 2008. The appeal is brought from a judgment of the Federal Magistrates Court of Australia of 18 September 2008. The learned Federal Magistrate ordered that the Application which was before him be dismissed and that the appellant pay the respondent Minister's costs fixed in the amount of $2,700. 2 The proceeding in the Federal Magistrates Court was commenced by the filing on 11 February 2008 of an Application seeking constitutional writ relief in respect of a decision of the Refugee Review Tribunal ('the Tribunal') of 28 December 2007, which was handed down on 22 January 2008, whereby the Tribunal affirmed a decision of a delegate of the Minister of 27 September 2007 not to grant the appellant a Protection (Class XA) visa. 3 The Application in the Federal Magistrates Court identified the grounds upon which it was based as 'The Refugee Review Tribunal committed jurisdictional errors of law'. The Notice of Appeal identified the grounds of appeal as: '1. The Refugee Review Tribunal had bias against me and did not make fair decision on my application. 2. I clarified all my points at the hearing of the Federal Magistrates Court, but the Judge failed to correct the errors made by RRT. 3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court.' 4 The court file includes a copy of a letter of 3 November 2008 directed to the appellant at the address for service provided by him in the Notice of Appeal. That letter clearly indicated that the appeal would be listed for hearing before me at 10:15 today at the Law Courts Building, Queens Square, Sydney. 5 Ms McWilliam, who appears for the respondent Minister, has handed up copies of letters directed to the appellant at the same address, one of which enclosed a copy of the Court's letter confirming the time, date and place for hearing and the other enclosing the respondent Minister's outline of submissions. That letter also confirmed that the appeal was listed for hearing on 27 November 2008 at 10:15 am. When the matter was called the appellant did not appear. 6 Prior to the matter being formally called, it was apparent to those representing the Minister that the appellant had not arrived at the appointed time for the hearing of the appeal. Thereupon the Minister's representatives caused telephonic contact to be had with the appellant by ringing the mobile telephone number provided in the Notice of Appeal filed 8 October 2008. 7 A conversation ensued which included a conversation between the appellant and Ms Ma, who was the interpreter assigned to assist the appellant in court today in interpreting anything that he wished to say from the English language into Mandarin and vice versa. The conversation between Ms Ma and the appellant included an inquiry of the person to whom she spoke to confirm that he was the appellant and this confirmation was provided. A further question was asked of him as to whether he knew that he should appear in court today to which he responded that he had forgotten that. He indicated that he was on the Gold Coast and that he had gone there a couple of weeks ago. It was indicated to him that an application would be made for his appeal to be dismissed. 8 I am satisfied that the appellant had notice of the time, date and place for hearing of his appeal. 9 The respondent Minister has requested that the Court order that the appeal be dismissed in exercise of the Court's power under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). That section relevantly provides: '25(2B) A single Judge or a Full Court may: … (bb) make an order that an appeal to the Court be dismissed for: … (ii) failure of the appellant to attend a hearing relating to the appeal …' 10 In my opinion the appeal should be dismissed. 11 Whilst it is unnecessary for me to do so, I should say that I have read the Statement of Decision and Reasons of the Tribunal and am impressed by the thoroughness and care which has apparently gone into the recording of the appellant's claims and evidence and the Tribunal's consideration of the claims and evidence and the expression of the Findings and Reasons of the Tribunal. 12 Without the assistance of the appellant's submissions it is difficult to forecast what the outcome of the appeal might have been had he attended. It is sufficient to say that there was no apparent jurisdictional error which I could discern which would warrant the appeal being allowed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.