FEDERAL COURT OF AUSTRALIA

SZFLV v Minister for Immigration, Multicultural and Indigenous Affairs

[2005] FCA 1863

SZFLV v Minister for Immigration, Multicultural and Indigenous Affairs and Refugee Review Tribunal

NSD 1796 OF 2005

jacobson j

12 december 2005

sydney

On appeal from a decision of the Federal Magistrates Court of Australia

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed pursuant to section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).  

2.                  The appellant pay the costs of the first respondent of the appeal.

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

On appeal from a decision of the Federal Magistrates Court of Australia

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal against the orders and judgment of Federal Magistrate Driver dated 5 September 2005.  On that date the learned Magistrate summarily dismissed an application for judicial review of a decision of the RRT handed down on 10 December 2004.  The dismissal was made pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001.

2                     The matter was listed for hearing before me today at 10.15am.  I waited until 10.30am to commence the hearing because I was informed that the applicant had not yet arrived at court.  It is now 10.40am and there is still no appearance for the applicant.  The Minister's solicitor asks me to dismiss the application for want of appearance this morning.

3                     I am satisfied that the applicant was notified of today's hearing date.  The matter was originally listed for hearing on 25 October 2005.  However, on 17 October 2005 my associate wrote to the applicant informing him that the hearing date of 25 October had been vacated and that the matter was now listed for hearing before me on Monday, 12 December 2005 at 10.15am.  The letter was sent to the applicant at the address stated in the application for leave to appeal. 

4                     Moreover, on 22 November 2005, the Minister's solicitors wrote to the applicant at the same address enclosing a copy of the Minister's written submissions.  The letter reminded the applicant that the application for leave to appeal was listed for hearing before me this morning.  Indeed, the letter stated that if the applicant did not attend the hearing, the Minister's instructions were to seek dismissal of the application with costs.

5                     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 s 25(2B)(bb)(ii) of the Federal Court of Australia 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 had 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                     Accordingly, the order I will make is that the application be dismissed with costs.

Associate:

Dated:              16 December 2005