SZKLM v Minister for Immigration and Citizenship [2007] FCA 1729 (31 October 2007)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1643 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKLM Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GRAY J
DATE OF ORDER:	31 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed, pursuant to the power given by s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

2. The appellant pay the first respondent’s costs of the appeal, fixed at $3,300.

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 1643 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKLM Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GRAY J
DATE:	31 OCTOBER 2007
PLACE:	SYDNEY

1 This appeal was called on for hearing at 10.15 this morning. Counsel for the first respondent, the Minister for Immigration and Citizenship, announced his appearance. It did not appear that the appellant was present in Court. With the assistance of the interpreter, who had been engaged for the purposes of the appeal, and of the court officer, I had the appellant’s name (his real name) called outside of the courtroom. There was no response to that call.

2 I then adjourned the proceeding temporarily to see whether contact could be made with the appellant by telephone. My associate telephoned a mobile telephone number that appeared on the notice of appeal. She has informed me that the telephone did not appear to ring at the other end, but went straight through to a recorded message, saying that the person called was unavailable, and inviting her to leave a message. She did leave a message inviting the appellant to contact the Court, or to come immediately to Court 20A.

3 In the meantime, the court officer went to level 16 in this building to check whether the appellant had attended at the registry, but was unable to find any trace of him. I allowed some time to go by, in case the appellant should manage to attend at Court but, on my resumption at approximately 10.50 am, he was not there.

4 On the court file is a letter dated 20 September 2007, addressed both to the appellant by his real name and to the solicitors for the first respondent, advising of the date and time of the hearing. The letter is addressed to the appellant at two addresses, one being an address that he has given as a residential address and the other being the address that he has given as his address for service. In the ordinary course, that letter would have been posted to both of those addresses, as well as forwarded to the solicitors for the first respondent by document exchange. Counsel for the first respondent informs me that the solicitors for the first respondent did in fact receive that letter.

5 Accordingly, it seems to me that, as far as I can ascertain, the appellant has not attended for the hearing of the appeal and it appears unlikely that he will attend.

6 There is power under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) for the Court to make an order that an appeal be dismissed for failure of the appellant to attend a hearing related to the appeal. In the circumstances, I propose to exercise that power. It seems to me that this is the fairest way in which to deal with such an event because, if the appellant has been prevented by circumstances beyond his control from attending this morning, and if he should wish to prosecute his appeal, it would be possible for him to have the appeal reinstated, even if the order dismissing it on that ground has been entered. If, on the other hand, I attempted to deal with the merits of the appeal, and dismissed it, once the order had been entered it would be difficult, if not impossible, for the appellant to have the appeal reinstated.

7 For those reasons I make the following order:

1. The appeal be dismissed, pursuant to the power given by s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

2. The appellant pay the first respondent’s costs of the appeal, fixed at $3,300.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Counsel for the Appellant:	The Appellant did not appear

Counsel for the First Respondent:	Mr James Mitchell

Solicitor for the First Respondent:	Blake Dawson Waldron

Date of Hearing:	31 October 2007

Date of Judgment:	31 October 2007