FEDERAL COURT OF AUSTRALIA SZOYW v Minister for Immigration and Citizenship [2011] FCA 873 Citation: SZOYW v Minister for Immigration and Citizenship [2011] FCA 873 Appeal from: Application for leave to appeal: SZOYW v Minister for Immigration [2011] FMCA 375 Parties: SZOYW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 856 of 2011 Judge: FOSTER J Date of judgment: 3 August 2011 Legislation: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii) Federal Magistrates Court Rules 2001 (Cth) r 13.03C(1)(c) Cases cited: SZOYW v Minister for Immigration [2011] FMCA 375 related Date of hearing: 3 August 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 11 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Mr L Leerdam of DLA Piper Australia Solicitor for the Second Respondent: The Second Respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 856 of 2011 BETWEEN: SZOYW Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FOSTER J DATE OF ORDER: 3 AUGUST 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Application for Leave to Appeal be dismissed. 2. The applicant pay the first respondent's costs of and incidental to the Application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 856 of 2011 BETWEEN: SZOYW Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FOSTER J DATE: 3 AUGUST 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal from the judgment of a Federal Magistrate given on 23 May 2011 (SZOYW v Minister for Immigration [2011] FMCA 375). Leave to appeal is required because the decision of the Federal Magistrate was interlocutory. By the decision in respect of which leave is sought, the Federal Magistrate refused to set aside an earlier decision which he had made by which he had dismissed the applicant's application for judicial review pursuant to r 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth). The Federal Magistrate's earlier decision had been made because the applicant had failed to attend the hearing before the Federal Magistrate fixed for 22 February 2011. 2 The applicant is a citizen of India who first arrived in Australia on 19 July 2008. He left Australia on 29 March 2010 and returned on 16 May 2010. On 4 June 2010, he lodged an Application for a Protection (Class XA) visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused that Application on 25 October 2010. 3 On 9 November 2010, the applicant applied to the Refugee Review Tribunal (the Tribunal) for review of that decision. The applicant had not attended an interview with the delegate. He also did not attend the Tribunal hearing. The Tribunal advised the applicant that it would not be able to make a favourable decision on the information before it, yet the applicant responded to the hearing invitation issued by the Tribunal by stating that he did not intend to attend the Tribunal hearing. 4 The Tribunal was unable to be satisfied on the evidence that the applicant had a well-founded fear of persecution for his political opinion or for any other Convention reason. 5 The applicant then applied to the Federal Magistrates Court for judicial review of that decision. On 22 February 2011, a Federal Magistrate dismissed the applicant's application for judicial review when he failed to appear before the Federal Magistrate. The applicant then applied to the Federal Magistrates Court to have the Federal Magistrate's order dismissing his application set aside. He said that he had been unwell and unable to attend the hearing before the Federal Magistrate on 22 February 2011. 6 The Federal Magistrate dismissed the applicant's application to set aside the earlier order for dismissal. He said that there was no medical evidence to support the applicant's contention that he did not attend the hearing by reason of sickness. The Federal Magistrate did, however, accept that the applicant was unwell. The Federal Magistrate found that the explanation which the applicant gave for the lengthy delay in bringing an application to set aside his previous decision was inadequate. The Federal Magistrate was not persuaded that he should disturb his earlier dismissal of the applicant's application for judicial review. 7 In this Court, the applicant seeks leave to appeal from this second decision made by the Federal Magistrate. There is a draft Notice of Appeal attached to his Application in this Court which, in a discursive way, sets out the grounds which the applicant would seek to agitate should leave be granted. In essence, those grounds constitute nothing more than merits review of the Tribunal decision. 8 The applicant was notified of the hearing this morning by letter from the Court sent on 6 July 2011. The solicitors for the first respondent also notified the applicant of this morning's fixture when they forwarded their Written Submissions to him on 21 July 2011. 9 Notwithstanding these notifications, the applicant has not attended the hearing this morning. 10 I propose to dismiss the Application pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). I should record that, having regard to the brief history of the matter which I have outlined above, I would not have granted leave to appeal in any event. 11 The orders of the Court are that the applicant's Application be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 5 August 2011