SZEQW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 549 (11 May 2006)

Last Updated: 15 May 2006

FEDERAL COURT OF AUSTRALIA

SZEQW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 549

SZEQW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 2290 of 2005

COWDROY J
11 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2290 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEQW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	COWDROY J
DATE OF ORDER:	11 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs in the amount of $2,800.

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 2290 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEQW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	COWDROY J
DATE:	11 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 These proceedings concern an appeal from a judgment of Smith FM delivered on 7 November 2005.

2 The appellant in these proceedings is an Indian national. On 7 June 2004, she applied to the Department of Immigration and Multicultural and Indigenous Affairs for a protection visa. The protection visa was sought on the basis that, following her decision to become a lesbian in 2000, she had received death threats from her own and her late husband’s family and feared persecution if she were to return.

3 A delegate of the Minister refused the appellant’s application on 18 June 2004. On 2 July 2004, the appellant made application to the Refugee Review Tribunal (‘RRT’) for a review of the delegate’s decision.

4 The RRT considered the information provided in the appellant’s application and advised the appellant in writing that it was unable to make a decision in her favour on the basis of that information alone. The RRT invited the appellant to attend a hearing to give oral evidence and present arguments in support of her claim, and provided a response form by which she could reply. The appellant declined the invitation by returning the form, having selected the option which stated:

‘NO, I/we do not want to come to a hearing.

I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it.’

5 The RRT then proceeded to make a decision on 30 September 2004, and on 26 October 2004 the reasons for that decision were handed down. In that decision, the RRT stated:

‘The applicant has not indicated whether she is in a relationship currently, nor has she provided any details about any past relationships in which she may have been involved. Apart from a vague reference about being in a lesbian relationship in Aril [sic] 2000 in her response to Question 41 of Form C [her protection visa application form], the applicant has not given any indication about her relationship(s). Essentially, she has merely asserted that she is a lesbian who has suffered ill-treatment. The applicant has not provided any evidence in support of her claims. She has not attended a hearing despite the fact that she was put on notice that on the basis of the available information, the Tribunal could not make a favourable decision on that material alone.’

6 The appellant appealed the RRT’s decision to the Federal Magistrates Court. Smith FM dismissed the application on 3 December 2004 because the appellant had failed to appear on two occasions. The appellant subsequently sought reinstatement of her application, claiming that she had not received notification of the hearings, and on 11 April 2005, Smith FM reinstated the application.

7 The application was subsequently set down for hearing on 24 June 2005. On that date the appellant did not appear, but forwarded a medical certificate. At the next hearing date of 5 July 2005, the appellant again did not appear, but Smith FM adjourned the hearing as he was not satisfied that the appellant had received sufficient notice of the listing. The hearing was set down a third time on 4 October 2005. On this occasion, the appellant again failed to appear and Smith FM dismissed the application.

8 The appellant again applied to Smith FM for a reinstatement of her application. On 7 November 2005, Smith FM dismissed her application for reinstatement on the basis that the appellant had not established a satisfactory reason for her absence, and that the substantive application had no prospects of success. It is from this decision that the current appeal is brought. In fact, although the appellant has filed a notice of appeal, because the decision of Smith FM on 7 November 2005 was interlocutory, leave to appeal is required.

9 The current appeal has been listed on two occasions, namely on 14 December 2005 and 21 December 2005, for first directions before a Registrar of this Court. On both occasions, the appellant did not appear. On the second occasion, the respondent made an oral application that the matter be dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). However, because a Registrar is not able to exercise the power under s 25(2B)(bb)(ii), the matter was stood over until today. Accordingly, I am now required to determine whether this appeal should be dismissed because of the appellant’s failure to attend on the previous two occasions.

10 The respondent has provided two affidavits in these proceedings. The affidavit of Gemma Anne Broderick sworn 2 May 2006 sets out the steps which were taken to notify the appellant of the hearing date today. The affidavit of Olivia Oi-Lam Mak sworn 19 December 2005 sets out the steps which were taken to notify the appellant of the hearing date on 21 December 2005. On both occasions, express post notification was sent to each of the two addresses which the appellant provided on her notice of appeal. The notification sent on 15 December 2005 was returned unopened from her post office box address, although the notification sent to the residential address was apparently received. The notification sent on 20 April 2006 was returned unopened from her residential address, although the notification sent to her postal box address was apparently received.

11 The respondent has indicated today that on 8 May 2006 it also forwarded by express post a copy of its outline of submissions to the appellant at both of her listed addresses. The respondent has received no reply from the appellant, and neither letter has been returned to the respondent. However, given the short period of time between the date of posting and today’s date, the Court cannot be certain that the appellant has in fact received either letter.

12 In addition to the above, by letter dated 13 April 2006 the Court has notified the appellant of the date of the hearing at each of her listed addresses.

13 Despite this, the appellant has not appeared at Court today.

14 The respondent submits that, since the appellant has failed to attend on two previous directions dates, and has now failed to attend on a third occasion, it is appropriate to dismiss her appeal, particularly in light of her history of non-attendance at hearings in the Federal Magistrates Court. The respondent points out that the appellant was specifically notified that an application for dismissal of her appeal on the basis of non-appearance would be heard today.

15 The respondent submits in the alternative that if the Court is not minded to exercise its power under s 25(2B)(bb)(ii) of the Federal Court Act, the appellant’s application for leave to appeal should be dismissed because Smith FM’s decision is not attended with sufficient doubt to warrant its being reconsidered by the Full Court.

16 I am satisfied that the appeal should be dismissed under s 25(2B)(bb)(ii). The appellant has a history of non-appearance at hearings before this Court and the Federal Magistrates Court. She has failed to appear again on this occasion. She has made no contact with the Court or the respondent to explain this absence or her absence on the previous two occasions. In these circumstances, I consider that the appeal should be dismissed for non-appearance.

17 Accordingly, I dismiss the appeal with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 15 May 2006

Counsel for the Appellant:	The appellant did not appear.
Counsel for the Respondent:	Ms G Broderick (solicitor)
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	11 May 2006
Date of Judgment:	11 May 2006