FEDERAL COURT OF AUSTRALIA

SZGHX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1668

SZGHX v Minister for Immigration and Multicultural and Indigenous Affairs

N 1923 of 2005

JACOBSON J

17 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.

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 an extension of time to file and serve an application for leave to appeal from a decision of Federal Magistrate Scarlett given on 17 August 2005. 

2.                       The applicant claims to have a well founded fear of persecution in China as a member of the Falun Gong.  On 17 August 2005 the learned Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (“RRT”) dated 19 April 2005.  Federal Magistrate Scarlett's order was given in the absence of the applicant.  His Honour dismissed the application pursuant to Rule 13.03A(d) and in the alternative pursuant to rule 13.03A(c) of the Rules of the Federal Magistrates Court (“FMC Rules”) because the applicant was absent from the final hearing. 

3.                       When the matter was called on for hearing today there was no appearance by the applicant.  The matter was listed for 2.15pm and it is after 2.25pm but there is still no appearance.  The Minister's solicitor asks me to dismiss the application for want of an appearance. 

4.                       I am satisfied that the applicant was notified of today's hearing.  The legal support officer of the Federal Court wrote to the applicant at the address shown on the application for an extension of time notifying him that the application was listed for hearing before me today at 2.15pm.  Accordingly, I am satisfied that the applicant was notified of and ought to have been aware of the hearing date. 

5.                       I am also satisfied that I have power to make the order sought by the respondent.  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. 

6.                       Before stating the orders that I will make I should observe that it seems to me that the orders made by the learned Federal Magistrate should not have been made in the alternative because the provisions of paragraphs (c) and (d) of rule 13.03A of the FMC Rules are mutually exclusive.  Nevertheless I do not consider that this vitiates the orders.

7.                       Accordingly the order I will make today is that the application be dismissed with costs.

Associate:

Dated:              22 November 2005