SZSGF v Minister for Immigration

[2013] FCCA 2363

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSGF v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2363

Catchwords:

MIGRATION – Application for extension of time to submit an application for review of decision of the Refugee Review Tribunal – no appearance by applicant – application dismissed for non-appearance.

Legislation:

Migration Act 1958 (Cth), ss.476, 477.

Federal Circuit Court Rules 2001 (Cth) r.13.03C(1)(c).

Applicant: SZSGF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2727 of 2012

Judgment of: Judge Nicholls

Hearing date: 3 October 2013

Date of Last Submission: 3 October 2013

Delivered at: Sydney

Delivered on: 3 October 2013

REPRESENTATION

Applicant No appearance

Appearing for the Respondents Mr J Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the first respondent is amended to ‘Minister for Immigration and Border Protection’.

2. The application for an extension of time is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2727 of 2012

SZSGF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me an application made on 7 June 2013, seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), in which to bring a substantive application pursuant to s.476 of the Act. That substantive application seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 15 October 2012, which affirmed the decision of the delegate of the first respondent to refuse the grant of a protection visa to the applicant.

2. At the time of first lodging the substantive application to the Court the applicant also failed to make an application for an extension of time. Even though his application was lodged out of time (38 days after the Tribunal decision).

3. On 31 May 2013, the applicant was granted leave to file an application pursuant to s.477(2) of the Act, and an amended “substantive” application. He did so on 7 June 2013. The grounds of the application for an extension of time are as follows:

   “1. I lodged the case on 37 day because of the RRT decision comes to me twice.

   2. I did not know that I have to lodge in 35 days. I lodged within 28 working days.

   3. From RRT decision told me I can apply for judicial Review in 28 working days.”

4. The substantive application contains no grounds of review. Although the orders sought make reference to a “declaration”, in context, it appears the applicant seeks the usual orders relating to Tribunal decisions.

5. The applicant did not appear in Court today (03 October 2013), for the hearing of the application for the extension of time pursuant to s.477(2) of the Act. Mr J Smith of counsel appeared for the Minister.

6. I am satisfied that the applicant had reasonable notice of the date, time of the hearing today. I note that the applicant was present at the first Court date of this matter on 20 February 2013, when the application for an extension of time was set down for hearing for 27 September 2013. The applicant was, therefore, at least aware of the location of the proposed hearing. The date of the hearing was subsequently changed to the 3 October 2013 at 10.15am. I am also satisfied that the applicant was notified of the time and date of the hearing today by a letter, sent by the Court, to the applicant, dated 12 June 2013, notifying the applicant that the hearing would occur on 3 October 2013 at 10.15am. The applicant has not contacted the Court’s Registry to explain his non-appearance at the hearing. There is no explanation for his failure to appear at the hearing today, let alone a satisfactory explanation.

Conclusion

1. In these circumstances, the application for the extension of time to submit a substantive application for review of the Refugee Review Tribunal should be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). I will make an order accordingly. I will also request that the Minister’s solicitors write to the applicant, notifying him of r.16.05 of the Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 31 January 2014