FEDERAL COURT OF AUSTRALIA

SZASL v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1697

MIGRATION – no question of principle

Federal Court of Australia Act 1976 (Cth) s 25(1A)

Federal Court Rules O 52 r 38A(1)(d), O 52 r 38A(2)

SZASL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1545 OF 2004

HELY J

13 DECEMBER 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed with costs.

2.         As soon as possible the solicitors for the respondent should forward to the appellant at the address stated in the Notice of Appeal a copy of these reasons for decision as well as a copy of Order 52 rule 38A.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This matter was listed for hearing at 10.15 am today.  That listing occurred in consequence of orders which I made by consent on 19 November 2004 when the appellant was present.  It is therefore clear that the appellant knew that the matter was listed for hearing this morning.  One of the orders which I then made was that the appellant was to file and serve an outline of submissions on or before five clear working days prior to the hearing date.  No such submissions have been filed and the appellant is in default in terms of the performance of that order.

2                     On 24 November 2004 my associate wrote to the appellant notifying him that the Acting Chief Justice had made a determination pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that this matter be heard and determined by a single judge and the appellant was again notified that I would hear the matter at 10.15 am on Wednesday 13 December 2004.  When the matter was called on for hearing the appellant did not appear.  Counsel for the respondent requested, and I granted, a short adjournment to enable those instructing her to contact the appellant by telephone.  That contact was made with the assistance of the interpreter who was present in Court and the results of that contact have been recorded on transcript.

3                     Shortly stated, the appellant said that he knows the case is on and he is not here because he is in bed with a severe pain in his shoulder.  He said that he knew that he was supposed to call the Court but he took a painkiller and fell asleep.  The fact of the matter is that the appellant made no attempt to notify the solicitors for the respondent of any medical problem which affected his attending Court, and, until the respondent’s solicitors took the initiative to contact him this morning, had given no indication to the Court that he was suffering from any disabling condition.  During the course of that conversation he told the respondent’s solicitors that he wanted the matter stood over for four weeks. 

4                     I suppose I can construe that request, although made in absentia, as a request for an adjournment.  In my view, that request should be refused, because an appellant simply by absenting himself from the Court ought not be permitted to secure an adjournment without showing any cause as to why that should occur. 

5                     The second reason why I would refuse an adjournment is that I have read the decision of the Federal Magistrate.  I have also read the decision of the Refugee Review Tribunal and I have read the submissions lodged by counsel for the respondent.  The Notice of Appeal to this Court simply repeats certain of the grounds on which judicial review was sought before the Federal Magistrate and nothing has been put before me to show that the Federal Magistrate’s decision was given as a result of some legal, factual or discretionary error.  Nothing has been put before me by the appellant which would show that he has reasonable prospects of success in this appeal and my reading of the magistrate’s decision, unassisted by any submissions from the appellant, indicates that he does not have any reasonable prospect of success on the appeal.  So the second ground on which I would refuse an adjournment is that to grant it would be an exercise in futility.

6                     In those circumstances,  I acceded to the request of the respondent’s counsel that I should, pursuant to Order 52 rule 38A(1)(d) of the Federal Court Rules, proceed with the hearing of the appeal.  Having done so, for the reasons earlier indicated, I would dismiss the appeal with costs. 

7                     I note that Order 52 rule 38A(2) empowers the Court to set aside or vary any order made after proceeding in accordance with Order 52 rule 38A(1), and to give directions for the further conduct of the appeal.  As I would understand the effect of sub rule (2), the appellant could, if so advised, later make an application to set aside or vary the orders which I have just made.  Of course, if the appellant were to do so a necessary pre-condition would be that he satisfactorily explain by evidence his failure to attend this morning, and that he establish that there would be some purpose to be achieved by setting aside the orders which I am about to make. 

8                     I therefore order that the appeal be dismissed with costs.  I also direct that as soon as possible the solicitors for the respondent should forward to the appellant at the address stated in the Notice of Appeal a copy of these reasons as well as a copy of Order 52 rule 38A.

Associate:

Dated:              21 December 2004