SZKLJ v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 When this matter was called on for hearing today, there was no appearance by or on behalf of the Appellant. That contingency looming as an increasingly likely prospect as the hour approached 10.15, an endeavour was made to contact the Appellant, using for that purpose, the mobile telephone number specified in the appeal notice. That particular task was undertaken by the interpreter appointed for assistance of the court and those present, including the Appellant, Ms Mi. As it transpired, and as Ms Mi deposed in oral evidence which she gave, it proved possible to contact the Appellant at that mobile telephone number. Ms Mi's evidence was such that I am quite satisfied that it was the Appellant with whom she spoke, and further, that the Appellant was aware, via his receipt of the Court's listing notice, together with a series of letters, very properly sent by the solicitors or the First Respondent Minister. 2 The Appellant said to Ms Mi that he was unable to attend today because he was sick. I am not in a position to verify the accuracy, or otherwise, of that statement as to the Appellant's health. It does though, on its face, and if accepted, offer an explanation for the Appellant's non‑attendance today. An application has been made for the Court to exercise the power conferred by s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). That provision empowers the court to dismiss an appeal if there is a failure of an Appellant to attend a hearing relating to the appeal. Were there to be no apparent reason for the non‑attendance of an Appellant, and were it apparent that notice of the appeal hearing had been given to the address specified for service, I should unhesitatingly exercise that power to dismiss an appeal. 3 The difficulty though, is that there is, at least prime facie, an explanation of which I am aware, which may serve to explain an absence and certainly would if regarded as credible. In these circumstances, it seems to me that it would not be an appropriate exercise of the summary dismissal power conferred by s 25(2B)(bb)(ii) just to dismiss the appeal. Rather, the course I propose to take is to adjourn the hearing of the appeal to a date to be fixed in the August sittings of the Full Court, or such earlier date as the court may appoint. 4 There remains a question as to the costs of today. Because it is possible that this explanation, as apparently given to the interpreter, may not be ultimately regarded as credible, or at least because there is perhaps an interrogative note about it, it seems to me that the appropriate course in the interests of justice, is to reserve today's costs, thereby affording the Appellant an opportunity to be heard in relation to the costs of today.