SZKPE v Minister for Immigration and Citizenship [2008] FCA 209 (26 February 2008)

Last Updated: 4 March 2008

FEDERAL COURT OF AUSTRALIA

SZKPE v Minister for Immigration and Citizenship [2008] FCA 209

SZKPE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2210 OF 2007

GRAHAM J
26 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2210 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	GRAHAM J
DATE OF ORDER:	26 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Grants leave to the respondent Minister to file in court an affidavit of Alison Lena Faron affirmed 25 February 2008.

2. Orders that the appeal be dismissed for the failure of the appellant to attend the hearing of the appeal at Court Room 14B, Level 14, 80 William Street, Sydney at 10.15am on 26 February 2008.








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 2210 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	GRAHAM J
DATE:	26 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal by a citizen of the People’s Republic of China from a decision of a Federal Magistrate given on 23 October 2007. The Notice of Appeal was filed in this Court on 9 November 2007. It is now 10:35 am or thereabouts. The appellant has not appeared. Her name has been called three times outside the court using the pseudonym ‘SZKPE’, by which she is known for the purpose of these proceedings, and also by her true name, as disclosed in her application in the Federal Magistrates Court which was filed on 7 May 2007.

2 The grounds of appeal are brief, they were as follows:

‘1.  The Tribunal asked wrong questions and applied the wrong test, thus, its decision involved jurisdictional error affecting the decision which is subject to this application.

2.  The Tribunal made the decision according to irrelevant or incorrect information about the Falun Gong in China.’

3 The matter arose out of a decision of the Refugee Review Tribunal of 13 March 2007 which was handed down on 3 April 2007. Before reaching her decision the Tribunal Member conducted a hearing on 5 December 2006 at which the appellant appeared to give evidence and present arguments. The Tribunal Member affirmed the decision of the Minister’s Delegate not to grant the appellant a Protection (Class XA) visa.

4 An application was filed in the Federal Magistrates Court of Australia seeking constitutional writ relief in respect of the Tribunal’s decision. That application was decided adversely to the appellant on 23 October 2007 following a hearing on 17 September 2007.

5 The appellant was notified, according to the solicitor for the respondent Minister, of the appeal having been fixed for hearing today in this Court but at the court premises in Queens Square, Sydney. Due to the excessive number of matters listed for hearing today and the limited number of available courts, the matter was allocated for hearing at a court located at 80 William Street, Sydney.

6 I am satisfied that on 18 February 2008, that is to say some eight days ago, a letter was hand-delivered to the appellant’s address for service in Hurstville, drawing to her attention the fact that the hearing would take place in courtroom 14B on level 14 of 80 William Street, Sydney, which is the place at which the hearing is presently proceeding.

7 I have not been asked to proceed with the hearing of the matter under Order 52 rule 38A(1)(d) of the Federal Court Rules. Rather, I have been asked to deal with the matter in accordance with s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). That section which deals with the exercise by the Court of its appellate jurisdiction, includes a provision to the effect that a single judge may, in a matter such as this, make an order that the appeal be dismissed for failure of the appellant to attend a hearing relating to the appeal.

8 I trust that the reason for the appellant’s absence is other than a misunderstanding on her part as to the venue at which the hearing is to take place. It is perhaps difficult when persons in the position of the appellant are sent communications solely in the English language advising of the relevant venue for hearing, when there have been earlier hearings concerning that person at which an interpreter from the Mandarin into the English language and vice-versa has been required.

9 No written submissions were lodged with the Court by the appellant and I note that the respondent Minister’s submissions were to the effect that the appeal was hopeless in the circumstances of the case. However, I do not intend to embark upon a consideration of the matter on the merits.

10 I order that the appeal be dismissed for the failure of the appellant to attend the hearing of the appeal at courtroom 14B, level 14, 80 William Street, Sydney at 10.15 am on 26 February 2008.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated: 3 March 2008

There was no appearance for the Appellant.
Solicitor for the First Respondent:	DLA Phillips Fox
The Second Respondent filed a submitting appearance.
Date of Hearing:	26 February 2008
Date of Judgment:	26 February 2008