SZOLE v Minister for Immigration and Citizenship [2011] FCA 130 (15 February 2011)

Last Updated: 5 July 2011

FEDERAL COURT OF AUSTRALIA

SZOLE v Minister for Immigration and Citizenship [2011] FCA 130

Citation:		SZOLE v Minister for Immigration and Citizenship [2011] FCA 130
Appeal from:		SZOLE v Minister for Immigration & Anor [2010] FMCA 964
Parties:		SZOLE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 1738 of 2010
Judge:		KATZMANN J
Date of judgment:		15 February 2011
Legislation:		Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)
Date of hearing:	15 February 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	9
Counsel for the Appellant:	The Appellant did not appear.
Solicitor for the Respondents:	Mr G Johnson of DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1738 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	KATZMANN J
DATE OF ORDER:	15 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant pay the respondent’s costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1738 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	KATZMANN J
DATE:	15 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the People’s Republic of China who is seeking asylum in Australia. She claims to fear persecution on religious grounds as a member of an underground Christian church and on the basis of China’s one child policy. She entered Australia on 4 February 2009 on a student guardian visa which expired on 11 September 2009. Two days before the visa expired she applied to the first respondent (“the Minister”) for a protection (Class XA) visa.
2. On 8 December 2009 a delegate of the Minister refused her application. She applied for a review on the merits to the second respondent (“the Tribunal”), which disbelieved her claims, and then unsuccessfully sought the issue of constitutional writs in the Federal Magistrates Court to have the Tribunal’s decision set aside. On 13 December 2010 she appealed from the Federal Magistrate’s decision to this Court.
3. The appeal was listed for hearing at 10.15 am today. A Mandarin interpreter was present but she did not appear. Nor did she appear when the matter was called on and her name called outside the courtroom at 10.30 am, 11.05 am and 2.15 pm. During the course of the morning several unsuccessful attempts were made to reach her on a mobile phone number she had listed on the notice of appeal.
4. The Minister applied for the appeal to be dismissed under s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) (“the Act”).
5. Section 25(2B)(bb) relevantly provides:

A single Judge (sitting in Chambers or in open court) or a Full Court may:
....
(bb) make an order that an appeal to the Court be dismissed for:
(i) ...
(ii) failure of the appellant to attend a hearing relating to the appeal.

6. The application should be granted.
7. I am satisfied that the appellant was aware that the matter was listed for hearing today. The file shows that a formal notification was dispatched by the Court on 21 January 2011. An affidavit affirmed by Pua Soliola on 15 February 2011 shows that she was served with a copy of the Minister’s written submissions at her nominated address for service, reminded at that time of the time, date and place of hearing and given directions about how to reach the courthouse. I note that the documents are in English and the appellant is unlikely to be able to read English but the appeal book provides sufficient evidence that she is able to obtain the necessary assistance from others who can.
8. In all the circumstances, the appeal should be dismissed for the appellant’s failure to attend the hearing of her appeal. I see no utility in any other option. In coming to this conclusion, I have had regard to the terms of s 37M of the Act, which requires that any power conferred on the court be exercised in a way that best promotes the overarching purpose of the civil practice and procedure provisions of the Rules of Court. That purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. It includes the efficient use of the judicial and administrative resources available for the purposes of the court, the efficient disposal of the court’s overall caseload and the disposal of all proceedings in a timely manner. The appeal is dismissed with costs.
   
9. The orders I make are:

(1) The appeal is dismissed.
(2) The appellant is to pay the respondent’s costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:

Dated: 21 February 2011