SZKAR v Minister for Immigration & Citizenship [2008] FCA 71 (14 February 2008)

Last Updated: 14 February 2008

FEDERAL COURT OF AUSTRALIA

SZKAR v Minister for Immigration & Citizenship [2008] FCA 71

MIGRATION – failure to attend hearing of appeal – failure to apply within time to vary or discharge order – application to reinstate appeal proceedings – failure to appear on application – application refused – no further document to be accepted



Federal Court of Australia Act 1976 (Cth) s 25(2B)(bc)
Federal Court Rules O 46 r 7A
Migration Act 1958 (Cth)
























SZKAR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1343 OF 2007

BUCHANAN J
14 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1343 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKAR Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	8 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Notice of Motion is dismissed.

THE COURT DIRECTS THAT:

1. The Registrar refuse, under O 46 r 7A, to accept for filing any further document from the applicant unless the leave of a judge is first obtained.

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 1343 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKAR Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	14 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant pay the costs of the first respondent in connection with the notice of motion dismissed on 8 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 1343 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKAR Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BUCHANAN J
DATE:	14 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1 By a notice of motion filed on 10 January 2008 the applicant appears to seek the reinstatement, under s 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth), of an appeal to this Court which was dismissed by a judge of the Court on 31 October 2007 when he did not appear at the hearing of the appeal. He did not appear either when the notice of motion was listed for hearing on 8 February 2008. At the conclusion of those proceedings I made an order dismissing the notice of motion and a direction, pursuant to Order 46 r7A of the Federal Court Rules that the Registrar not accept any document from the applicant for filing unless the leave of a judge was first obtained. I indicated that I would publish my reasons for the order and direction at a later date. These are those reasons.

2 The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 16 June 2006. One week later he made an application for a protection visa. On 29 August 2006 a delegate of the Minister refused the application. The applicant applied for a review of the delegate’s decision to the Refugee Review Tribunal (‘the RRT’) constituted under the Migration Act 1958 (Cth). On 20 October 2006 the RRT wrote to the applicant inviting him to attend a hearing on 16 November 2006. The applicant did not reply to the letter and did not attend the hearing. On 19 December 2006 the RRT handed down a decision affirming the decision of the delegate to refuse a protection visa.

3 The applicant applied to the Federal Magistrates Court of Australia (‘the FMCA’) for judicial review of the decision of the RRT. The FMCA rejected all of the arguments he advanced in support of his application for judicial review. The Federal Magistrate also considered, independently of his submissions, whether any jurisdictional error appeared in the decision of the RRT. He concluded that it did not. The application for judicial review was dismissed with costs.

4 The applicant brought an appeal to this Court from the decision of the FMCA. The grounds of appeal seem, having regard to the terms of the decision of the FMCA, to be without any substance. At the hearing of the appeal the applicant did not appear. His appeal to this Court was dismissed on 31 October 2007 but he was at the same time granted leave to apply on or before 30 December 2007 to vary or discharge the order dismissing his appeal. The orders made on that day were as follows:

‘1. The appeal be dismissed.

2. The appellant to pay the respondents’ costs.

3. The respondents not perfect this order before 30 December 2007.

4. The appellant have leave to apply on or before 30 December 2007 to vary or discharge these orders, such application to be supported by evidence from a medical practitioner that the appellant was unable to appear in court on 31 October 2007.’

5 Despite the fact that he had two months in which to make such an application the applicant did not do so. I do not know why his present notice of motion was accepted for filing in the Registry. By the time he sought to file it there were no proceedings on foot to which the notice of motion could relate. Nevertheless, as it is, at least purportedly, before the Court I shall deal with it.

6 The notice of motion states, as the order sought, the following:

‘1. Due to sickness, I was unable to attend the court on 31 Oct 2007. Please see the attached medical certificate.’

7 In support of the notice of motion the applicant filed an affidavit which says only:

‘1. I was unable to attend hearing on 31 Oct 2007 due to my sickness.’

8 He attached a medical certificate. The certificate is dated 9 November 2007. On the face of the notice of motion and the material filed in support of it there is no basis to reinstate the appeal. No explanation was given for the failure to apply to vary or discharge the order of 31 October 2007 by the date specified in that order.

9 Although the notice of motion was itself liable to be dismissed for the non-appearance of the applicant it was better, in my view, to dismiss it for lack of merit. That was the intended effect of the order which I made on 8 February 2008. I should indicate also that I see no reason to have any doubt about the correctness of the decision of the FMCA which the applicant wished to challenge by the appeal which was dismissed on 31 October 2007.

10 The failure of the applicant to appear in either of the proceedings in this Court relating to his appeal imposes an unnecessary burden on the first respondent, who has been represented on each occasion, and on the resources of the Court, including the arrangements for interpreters. In view of the history of the applicant’s failures to appear in the proceedings, or comply with the requirements in the earlier orders, I decided it was also appropriate to direct, pursuant to Order 46 r 7A of the Federal Court Rules, that the Registry not accept any further document from the applicant for filing unless the leave of a judge was first obtained.

11 The written submission for the Minister about the notice of motion sought costs. At the time I dismissed the notice of motion I omitted to deal with that question. It is appropriate to dismiss the notice of motion with costs. I will make that further order.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 14 February 2008

Counsel for the Applicant:	The applicant did not appear
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	8 February 2008
Date of Judgment:	14 February 2008