SZSMW v Minister for Immigration and Border Protection

[2013] FCA 1177

FEDERAL COURT OF AUSTRALIA

SZSMW v Minister for Immigration and Border Protection [2013] FCA 1177

Citation:	SZSMW v Minister for Immigration and Border Protection [2013] FCA 1177
Appeal from:	SZSMW v Minister for Immigration and Citizenship [2013] FCCA 934
Parties:	SZSMW v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1489 OF 2013
Judge:	TRACEY J
Date of judgment:	8 November 2013
Catchwords:	MIGRATION – application for extension of time to appeal – application for leave to appeal from decision of the Federal Circuit Court following refusal of protection visa – applicant already removed from Australia – application dismissed
Legislation:	Federal Circuit Court Rules 2001 (Cth) r 44.12 Federal Court Rules 2011 (Cth) rr 35.13, 35.32, 35.33
Cases cited:	SZSMW v Minister for Immigration and Citizenship [2013] FCCA 934 – cited
Date of hearing:	8 November 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Appellant:	No appearance
Counsel for the First and Second Respondents:	Mr A Markus
Solicitor for the First and Second Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1489 OF 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSMW
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	8 NOVEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.There be no order as to costs.

3.The title of the first respondent be amended to read Minister for Immigration and Border Protection.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1489 OF 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSMW
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	8 NOVEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to apply for leave to appeal against a decision of the Federal Circuit Court of Australia (“the FCC”) handed down on 8 July 2013 and for leave to appeal from that decision:  see SZSMW v Minister for Immigration and Citizenship [2013] FCCA 934. The application was filed on 25 July 2013. The Court dismissed an application by the applicant for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). An extension of time is needed because the applicant failed to lodge his application within the prescribed time: see Federal Court Rules 2011 (Cth) (“the Rules”), Rule 35.13. Leave to appeal is required because the FCC dismissed the application to it under Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Such a dismissal is interlocutory in nature: see Rule 44.12(2).

   BACKGROUND

2. When the application was called on for hearing this morning the applicant did not appear. The reason for that non-appearance is that the applicant was removed from Australia at some time about 13 September 2013. His removal was effected under s 198(6) of the Migration Act 1958 (Cth) (“the Act”) after he had signed a notice of intention to remove him from Australia. The notice invited him to approach his case manager if he wished to raise any matter relevant to the Department’s ability to remove him. He made no application for a stay of his removal pending the hearing and determination of his present applications. He was removed to Pakistan and will be in a position, should he at some point in the future return to Australia, to renew his application for a protection visa should he be so advised.

3. Counsel for the Minister has submitted that, in these circumstances, the Court should act under Rules 35.32 and 35.33 of the Rules which provide that a party who makes an application of the present kind and who fails to attend a hearing relating to the application may face an application by the Minister that the application be dismissed.

4. I am minded to act under these rules but I would also wish to add that I have had regard to the grounds of the proposed appeal and I doubt very much whether, even had the applicant been here to prosecute his application, he would have had any reasonable prospects of success.

5. Each of the grounds on which he proposed to rely sought to impugn the decision of the Tribunal. They did not allege error in the part of the FCC. At least two of the grounds, grounds 1 and 4, had not been argued in the FCC. Ground 2 is unsustainable: the Tribunal’s decision plainly related to the applicant’s application for a visa under the Act. No particulars of the alleged denial of natural justice are provided. A reading of the Tribunal’s reasons suggest that a lengthy hearing took place during which the applicant was invited to respond to all the material which led the Tribunal to affirm the decision under appeal before it.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:       8 November 2013