FEDERAL COURT OF AUSTRALIA

SZCQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1653

SZCQH v Minister for Immigration and Multicultural and Indigenous Affairs

N 1926 of 2005

JACOBSON J

15 NOVEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.          Application for leave to appeal be dismissed, pursuant to s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth).

2.          The applicant pay the respondents costs.

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

REASONS FOR JUDGMENT

1.                 This is an application for leave to appeal from a judgment of Federal Magistrate Raphael given on 26 August 2005. 

2.                 When the matter was called on for hearing this afternoon, there was no appearance by the applicant.  I stood the matter down until 2.25 pm in case the applicant was unavoidably detained, however, it is now nearly 2.30 pm and there is still no appearance. 

3.                 The solicitor for the Minister asks me to dismiss the application for want of appearance. 

4.                 I am satisfied that the applicant was notified of today's hearing.  The application for leave to appeal was stamped by the Registry with a stamp stating that the date and time would be advised by the Registry.  On 3 November 2005 the legal support officer of the court wrote to the applicant at the address for service given on the application notifying him that the application had been listed for hearing before me today at 2.15 pm. 

5.                 Accordingly, as I have said I am satisfied that the applicant was notified of and ought to have been aware of the hearing date.  I am also satisfied that I have power to make the order sought by the respondent. 

6.                 It seems to me that the power is to be found in either section 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) or order 35A rule 2(1)(f) and rule 3(1)(a) of the Federal Court Rules. 

7.                 I dealt with a similar application in SZDJA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1499.  I note that a similar approach had been taken by various other judges of this court, see for example, SZATD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1559 per Whitlam J. 

8.                 Accordingly, the order I will make is that the application be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) with costs.

Associate:

Dated:              18 November 2005