FEDERAL COURT OF AUSTRALIA

SZEJB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1667

SZEJB v Minister for Immigration and Multicultural and Indigenous Affairs

N 1950 of 2005

JACOBSON J

17 NOVEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.          The application for leave to appeal is dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court Act 1976.

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 orders and a judgment given by Federal Magistrate Nichols on 26 September 2005; see SZEJB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1430. 

2.                       The applicant is an infant who is now approximately two years of age.  In the proceedings before Federal Magistrate Nichols the applicant's father was appointed litigation guardian pursuant to rule 11.11 of the Federal Magistrates Court Rules (“FMC Rules”).  No such appointment has been made on the application for leave to appeal to this court.

3.                       On 3 June 2005, Federal Magistrate Nichols dismissed an application for judicial review pursuant to rule 13.03A of the FMC Rules because the applicant's litigation guardian, that is his father, failed to appear at the hearing.  The applicant subsequently filed a notice of motion seeking to have the orders set aside and on 26 September 2005 the learned Magistrate dismissed the application. 

4.                       The Magistrate's decision was interlocutory; see NACA v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 659 at [15] per Hely J, see also SZAJE v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1121 at [6] per Hill J and SZDPR v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1145 at [4] per Bennett J.

5.                       When the matter was called on for hearing shortly after 10.15 am, I had the matter called outside the court.  There was no appearance by the applicant or his father.  It is now shortly after 10.30 and there is still no appearance.  Mr White, solicitor for the Minister, asks me to dismiss the application for want of an appearance. 

6.                       I am satisfied that notice was sent to the infant applicant at the address given in the application for leave to appeal, that is to say, 19/108-110 Kiora Road, Miranda.  A notice was sent by the legal support officer of the court on 3 November 2005 and the Minister's solicitors sent a copy of their submissions on 14 November 2005.  The letter of 3 November 2005 reminded the applicant that the matter was listed for hearing before me today on the application for leave to appeal at 10.15 am. 

7.                       Although the application for leave to appeal records the infant applicant's name as the applicant, it would appear that the application was filed by his father.  There is a supporting affidavit purportedly sworn by the applicant but the signature which appears on it appears to be that of the applicant's father.  I have looked at a decision of the Refugee Review Tribunal (“RRT”) handed down on 11 November 2003 which is part of the history of the matter and the applicant's father is recorded as one of the two applicants in that proceeding.  It is his name which is decipherable as the name of the person who has sworn the affidavit in support dated 13 October 2005 and I think that it is clear enough that it was the father who filed the application for leave to appeal on his son's behalf. 

8.                       I note that the learned Federal Magistrate, when dealing with the application for judicial review, found that the applicant's father, having failed before the RRT on his own application for review, sought to have the claims re-considered by way of the device of using his infant son.  This is further reason for coming to the view that it was the applicant's father who filed the present application.

9.                       Thus, although the letters dated 3 November 2005 and 14 November 2005 were addressed to the infant applicant at the address recorded on the application for leave to appeal, it would seem to me that these notices must have been sent to the address of the applicant's parents.  Accordingly, the applicant's father must have been aware of today's hearing. 

10.                   It seems to me that this is sufficient notification of today's hearing date.  I am therefore of the view that it is appropriate to make an order dismissing the application for want of an appearance.

11.                   I am satisfied that I have power to make the order sought by the Minister.  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.  I dealt with a similar application in SZDJA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1499.  I note that a similar approach has been taken by various other judges of this court; see, for example, SZATD v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1559 per Whitlam J.  Accordingly, the order I will make is that the application be dismissed.

Associate:

Dated:              22 November 2005