SZSRM v Minister for Immigration and Border Protection

[2014] HCASL 145

SZSRM

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2014] HCASL 145
S56/2014

1. The applicant is a citizen of India.  He applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa in May 2012.  A delegate of the first respondent refused to grant the visa.  The applicant sought a review of the delegate's decision in the Refugee Review Tribunal ("the Tribunal").  The Tribunal did not accept the credibility of the applicant's claims and affirmed the delegate's decision. 

2. The applicant applied for judicial review of the Tribunal's decision in the Federal Circuit Court of Australia (Judge Barnes).  He failed to attend the hearing and his application was dismissed.  Thereafter he applied to have the proceedings reinstated.  Judge Barnes held that the applicant had not provided a satisfactory explanation for his non-attendance, had not demonstrated an arguable case of jurisdictional error, and had not shown that it was in the interests of justice to set aside the earlier order. Her Honour dismissed the application.

3. The applicant filed a notice of appeal from each of Judge Barnes' orders to the Federal Court of Australia (Rares J).  Leave was required to appeal from these interlocutory orders and any such application was required to be filed within 14 days[1].  His Honour treated the notice of appeal as if it was an application for leave to appeal and for an extension of time in which to do so[2].  His Honour was unable to discern any arguable basis for challenge to either of the decisions below and he dismissed the appeal as incompetent.

   [1]Federal Court Rules 2001 (Cth), r 35.13.

   [2]SZSRM v Minister for Immigration and Border Protection [2014] FCA 221 at [18].

4. The applicant applies for special leave to appeal. He does not have legal representation and his application falls to be dealt with under r 41.10 of the High Court Rules 2004 (Cth).

5. The applicant's draft notice of appeal and written case are directed to the factual basis of his claims, save for the assertion that the Tribunal failed to consider his claim to engage Australia's complementary protection obligations.  However, as Rares J observed, the Tribunal considered the complementary protection criteria under the Migration Act 1958 (Cth) and determined that the applicant did not come within them[3]. 

   [3]SZSRM v Minister for Immigration and Border Protection [2014] FCA 221 at [7].

6. If special leave to appeal were granted, the appeal would have no prospect of success.

7. The application is dismissed.

8. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
15 August 2014 S.J. Gageler