SZBFL v Refugee Review Tribunal [2005] FCA 869 (24 June 2005)

Last Updated: 1 July 2005

FEDERAL COURT OF AUSTRALIA

SZBFL v Refugee Review Tribunal [2005] FCA 869

SZBFL v REFUGEE REVIEW TRIBUNAL & ANOR
NSD 439 of 2005

ALLSOP J
24 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 439 of 2005

BETWEEN:	SZBFL APPELLANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	24 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The Refugee Review Tribunal be joined as a party to the proceeding as the first respondent.

2.	The Minister for Immigration and Multicultural and Indigenous Affairs be made the second respondent to the proceeding.

3.	The appeal be dismissed pursuant to s 25 (2B) (bb) (i) and (ii) of the Federal Court of Australia Act 1976 (Cth).

4.	The appellant pay the second respondent’s costs of the appeal.

5.	The second respondent not take out the orders made today until the expiry of 5 working days from the second respondent sending by registered post the terms of these orders to the appellant at his last known address for service by reference to the Rules.

6.	If the appellant moves to set aside the orders within the period of 21 days, as per order 5 above, the respondent may not enter the orders without leave of the Court.

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 439 of 2005

BETWEEN:	SZBFL APPELLANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	27 JUNE 2005 (SUPPLEMENTARY ORDERS)
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Order 3 of the orders made on 24 June 2004 be varied by the insertion of 21 days instead of 5 so that order 3 read as follows:

The second respondent not take out the orders made today until the expiry of 21 working days from the second respondent sending by registered post the terms of these orders to the appellant at his last known address for service by reference to the Rules.

2. Add to the orders made on 24 June 2004 a fourth order being:

If the appellant moves to set aside the orders within the period of 21 days, as per order 3 above, the respondent may not enter the orders without leave of the Court.

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 439 of 2005

BETWEEN:	SZBFL APPELLANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	24 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 In this matter, the appellant, whose name I cannot mention because of s 91X of the Migration Act 1958 (Cth) (the Act), has filed a notice of appeal from a decision of a Federal Magistrate. The notice of appeal has the following grounds:

2. The Honourable Magistrate failed in finding any error of law.

3. The decision made by RRT is incorrect and liable to be set-a-side.

2 Under the heading, "Orders Sought", orders were identified that were requested. Thus, as can be seen from the above, the notice of appeal contained absolutely no recognisable ground of appeal of error of the Federal Magistrate.

3 Consequent upon that, on the 12 May 2005, I made orders which required an amended notice of appeal with adequate particulars setting out the grounds of appeal be filed on or before 17 June 2005, and full written submissions in support of the appeal, including, if the appellant desired to do so, submissions as to whether one Judge or three Judges hear the appeal.

4 The appellant appeared in person on that day. He had been given an adjournment on an earlier hearing because he had rung the Court saying he had just had a foot operation. The matter was listed today pursuant to the orders that I made on 12 May 2005. On 23 June 2005, that is, yesterday, the appellant made communication with my associate, indicating that he had the flu, and that he would be unable to attend this afternoon. My associate told him that that was not the appropriate course to take, and that he should obtain a medical certificate and if he wished to make an adjournment application he should attend.

5 A facsimile of a medical certificate was faxed to my chambers yesterday afternoon from a Dr Hasnani, whose address is at Waterloo. The appellant's address for service is in Lakemba.

6 I am informed by Ms Bautista of Sparke Helmore, that Ms Rayment, who has carriage of the matter for the respondent, attempted to contact the appellant yesterday to indicate the Minister's position of opposing an adjournment of today, and was not able to speak to the appellant but left a message on his voice mail. Ms Bautista has filed an affidavit indicating that she has contacted Dr Hasnani, who has indicated that he was not told that the matter was in court today, and that the appellant has mild flu, with a low grade temperature of 37.6 degrees.

7 I should approach the matter on the basis of the medical certificate on its face. I do not mean to be critical of Ms Bautista, or Sparke Helmore, but there may be questions of doctor/patient confidentiality in relation to the discussion with Dr Hasnani.

8 Looking at the medical certificate given by the doctor and sent to my chambers, it is inadequate to support any adjournment application. It simply states that the appellant will be or was unfit for work/school from 23 June 2005 to 24 June 2005 because of a viral respiratory illness.

9 Apparently the appellant was well enough to travel from Lakemba to Waterloo to obtain the certificate, but he is not well enough, or says he is not well enough, to attend court today.

10 There is no attendance by the appellant before the court today. The acronym given to him per force of s 91X of the Act was called three times outside the court by the court officer. He has not appeared. It is quite inadequate for the appellant to treat the court processes in this way. It is his appeal. I do not propose to put the respondent Minister to any further expense in this appeal, or to the Court to any further expense, or to delay the hearing as I am today of another litigant's case by any further dealing with this matter save to make orders under s 25 of the Federal Court of Australia Act 1976 (Cth) that the appeal be dismissed.

11 The appeal is being dismissed for the failure of the appellant to attend a hearing, that is the directions hearing today, relating to the appeal and a substantive failure to comply with the order that I made on 12 May 2005. There were written submissions filed in support of the appeal. On their face, they are not complete submissions. An amended notice of appeal has not been filed. So, for both those reasons, that is, the failure to comply with the Court's orders and the failure to attend today, the appeal is dismissed.

12 I should add that a Bengali interpreter, Ms Maharaj has attended today and, no doubt, will be remunerated in the usual way for her attendance, but the Court has been put to the expense of paying for Ms Maharaj's attendance. Thus, the appellant has put the Minister and the public through the Court to a body of expense, which in my view, should not have been wasted.

13 The appeal is dismissed pursuant to s 25 of the Federal Court of Australia Act, and the appellant is ordered to pay the second respondent’s costs of the appeal.

14 I make one further order. I order that the second respondent not take out the orders that I have made today until the expiry of five working days from the sending by registered post of the terms of these orders to the appellant at his last known address for service, by reference to the Rules. [This was later amended in chambers to:

The second respondent not take out the orders made today until the expiry of 21 working days from the second respondent sending by registered post the terms of these orders to the appellant at his last known address for service by reference to the Rules.]

15 Any application that the appellant makes to deal with the order before it is entered should come before me.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 1 July 2005

Counsel for the Respondent:	Ms J Bautista (Slr)
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	24 June 2005
Date of Judgment:	24 June 2005