BZAEL v Minister for Immigration and Border Protection

[2014] FCA 519

FEDERAL COURT OF AUSTRALIA

BZAEL v Minister for Immigration and Border Protection [2014] FCA 519

Citation:	BZAEL v Minister for Immigration and Border Protection [2014] FCA 519
Appeal from:	BZAEL & Anor v Minister for Immigration and Border Protection & Anor [2014] FCCA 723
Parties:	BZAEL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	QUD 116 of 2014
Judge:	COLLIER J
Date of judgment:	19 May 2014
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 24(1A) 25(2B)(bb)(ii) Migration Act 1958 (Cth) s 65 Federal Circuit Court Rules 2001 r 13.03(1)(c) Federal Court Rules 2011 (Cth) r 25.13
Date of hearing:	19 May 2014
Place:	Brisbane
Division:	GENERAL DIVISION
Category	No Catchwords
Number of paragraphs:	8
Counsel for the Appellant:	The Appellant did not appear
Solicitor for the First and Second Respondent	Mr MJ Lucey of Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 116 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BZAEL
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	19 MAY 2014
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 116 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BZAEL
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	19 MAY 2014
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 10 January 2013 the Refugee Review Tribunal (“the Tribunal”) affirmed an earlier decision of the Minister for Immigration and Border Protection (“the Minister”) refusing to grant the appellant a protection visa pursuant to s 65 of the Migration Act 1958 (Cth). The appellant had studied in Australia and applied on the grounds that he was not informed of the process for applying for a graduate-type visa, and on other humanitarian grounds, namely that he would suffer severe psychological distress and shame returning to family in India.

2. On 4 July 2013 the appellant filed an application to extend time to apply for review as well as an application to review the decision of the Tribunal in the Federal Circuit Court. This application was dismissed by a Judge of the Federal Circuit Court on 3 March 2014 in accordance with R 13.03(1)(c) of the Federal Circuit Court Rules 2001, which empowers the Court to dismiss an application if the applicant is absent from the hearing. A further order was made that the dismissal be subject to the filing of any application with seven days.

3. On 24 March 2014, the appellant filed a notice of appeal from judgment of 3 March 2014, seeking to have the judgment set aside on the basis that the Judge failed to consider that the Tribunal had denied the appellant procedural fairness, and that the Judge dismissed the case without considering the legal and factual errors in the Tribunal's decision.

4. The first respondent filed a notice of objection to competency of the notice of appeal contending (in summary) that:

   ·The appellant sought to appeal from an interlocutory judgment (being the decision of Judge Purdon-Sully of 3 March 2014).

   ·Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) and rule 35.11 of the Federal Court Rules 2011 (Cth) requires that leave be sought to appeal from an interlocutory judgment.

   ·Rule 25.13 of the Federal Court Rules 2011 provides that an application for leave to appeal must be made within 14 days after the date on which the interlocutory judgment was pronounced, or such further time as the Court may allow. The appellant was required to file and serve an application for Leave to Appeal by 17 March 2014. The appellant filed a notice of appeal on 24 March 2014.

   ·The appellant had not sought leave of the Court to appeal.

   ·It followed that this Court does not have jurisdiction to hear the appeal.

5. At the hearing before me there was no appearance by the appellant. The Court Officer called the names of the matter outside of the Court, and there was no response. The Court Officer then rang the phone number which was notified in the appeal book as the appellant's contact telephone number. There was no answer.

6. No reason has been provided for the failure of the appellant to appear at the hearing.

7. In the circumstances of this case, I consider it would be appropriate to dismiss the appeal before me for want of appearance pursuant to s 25(2B)(bb)(ii) of the Federal Court Act. In any event, I will also uphold the objection to competency filed on 31 March 2014, on the basis that the Court has no jurisdiction to hear the appeal because no leave to appeal has been sought when it was clearly required.

8. I am also satisfied, as I have already indicated, that the appellant was properly notified of today's hearing, and that to the extent possible the respondents' solicitors have endeavoured to make the appellant aware of the time and place of the hearing.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:       19 May 2014