FEDERAL COURT OF AUSTRALIA

SZNNY v Minister for Immigration and Citizenship [2009] FCA 1275

SZNNY and SZNNZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 769 of 2009

GRAHAM J

3 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the respondent Minister’s costs of the appeal.

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

1                     The matter presently before the Court is an appeal by a husband and wife who have been identified, for the purposes of the proceedings as ‘SZNNY’ and ‘SZNNZ’.  The appeal was instituted by a Notice of Appeal filed 28 July 2009.  When the matter was called for hearing today, 3 November 2009, neither appellant appeared.  I am satisfied that the appellants had notice of the hearing.  The Court forwarded two letters to the first appellant at his address for service indicated in the Notice of Appeal, informing him of the fact that the appeal was listed for hearing at 10:15am today.  A further letter was tendered which disclosed that the matter was fixed for hearing at 10:15am today, that letter having been sent by the solicitor for the first respondent to the appellants at the Post Office box address provided in the Notice of Appeal.

2                     The evidence in respect of the hearing date includes a facsimile from the first appellant to the Court disclosing that the appellant had left Griffith and travelled to Darwin.  The communication clearly acknowledged awareness of the hearing having been fixed for today and requested an adjournment of the hearing or, alternatively, for the hearing to proceed in Darwin. 

3                     An attempt was made to communicate with the appellant to indicate that the Court was not minded to grant an adjournment, but would allow the matter to proceed by way of a video link hearing from Darwin.  The registry of the Court attempted to notify the appellants of this possibility and of the unwillingness of the Court to grant any adjournment on the material then before it.  Unfortunately, the telephone number provided in the Notice of Appeal was not answered when calls were made to it. 

4                     In the circumstances, I have been asked to order that the appeal be dismissed in accordance with s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). 

5                     The appeal book indicates that the appellants arrived in Australia on 15 September 2008; that the first appellant made an application for a Protection (Class XA) visa on 16 October 2008 on the basis that he had a well-founded fear of persecution for a Convention reason.  His application included the second appellant as a member of his family unit, who did not have her own claim to be a refugee.

6                     The application for protection visas was refused by a delegate of the Minister on 14 January 2009.  An application for review of the Minister’s delegate’s decision was lodged with the Refugee Review Tribunal on 4 February 2009.  The appellants were invited to a hearing before the Tribunal, and the first appellant attended a hearing on 17 March 2009, which lasted for approximately three hours.  On 8 April 2009, a decision of the Tribunal, dated 7 April 2009, was handed down which affirmed the decisions of the Minister’s delegate not to grant the appellants Protection (Class XA) visas. 

7                     On 1 May 2009, an application for review of the Tribunal’s decision was filed in the Federal Magistrates Court of Australia. 

On 29 May 2009 an Amended Application was filed.  Thereafter, a hearing took place on 6 July 2009, at which the first appellant appeared in person, and the second appellant did not appear.  Nichols FM delivered his judgment on 13 July 2009 and ordered that the application for review be dismissed.  He further ordered the appellants to pay the respondent Minister’s costs, fixed in the sum of $3,000.  It is from that decision that the appeal to this Court has been brought.  Whilst it is strictly unnecessary to do so, it is appropriate to observe that the claim to refugee status of the first appellant appears to have been based on an alleged well-founded fear of persecution for a Convention reason, being membership of a particular social group, namely, wealthy people who are engaged in charitable activities.  However, the nub of the Tribunal’s decision was that the Tribunal did not accept the first appellant as a witness of truth, and further held that the first appellant had created his claims in order to obtain the visa which he sought. 

8                     It seems clear to me that had the matter proceeded to a hearing, the appellants would have been confronted with considerable difficulties.  The appellants having failed to attend the hearing of the appeal fixed for today, 3 November 2009, I propose to order that the appeal be dismissed.

Associate:

Dated:         6 November 2009

The Appellants did not appear.

The Second Respondent filed a submitting appearance.