szswt
v
Minister for immigration and border protection & anor
[2015] HCASL 11
S261/2014
1The applicant, a national of China, applied for the grant of a Protection (Class XA) visa. A delegate of the first respondent refused the application.The Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision.An application for judicial review of the Tribunal's determination was dismissed by the Federal Circuit Court of Australia (Judge Driver).
2The applicant appealed to the Federal Court of Australia (Perry J) against the orders of the Federal Circuit Court.The hearing of the appeal was adjourned on two occasions at the applicant's request.The appeal was re-listed for hearing on 3 September 2014.On that date, the applicant failed to attend the hearing.The first respondent, the Minister for Immigration and Border Protection ("the Minister"), applied for an order dismissing the appeal under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).The power to make that order is conferred by s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).
3Perry J made the order sought by the Minister in circumstances in which her Honour was satisfied that the applicant had been notified of the Minister's intention to apply for an order for dismissal in the event he failed to attend the hearing and in circumstances in which no medical certificate or other material was before the Court explaining the applicant's non-attendance.Her Honour also took into account the absence of "apparent merit" in the appeal[1].
4The applicant applies for special leave to appeal from Perry J's order.The applicant does not have legal representation and his application falls to be dealt with under r 41.10 of the High Court Rules 2004 (Cth).
5The applicant has not taken any step in the Federal Court to set aside Perry J's order[2].Putting to one side questions of competence[3], an appeal to this Court would have no prospect of success.
[2] Federal Court Rules 2011 (Cth), r 36.75(2).
[3] Federal Court of Australia Act 1976 (Cth), s 33.
6The application is dismissed.
7Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.
| V.M. Bell 5 March 2015 | S.J. Gageler |
- AGLC
- SZSWTV v Minister for immigration and border protection & anor [2015] HCASL 11
- Case
- [2015] HCASL 11
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the dismissal of the appeal for non-attendance was justified under the Federal Court Rules and the Federal Court of Australia Act. The applicant argued that the dismissal was unfair, given the absence of a medical certificate or other explanation for his non-attendance. The court needed to consider whether the procedural fairness principles were adhered to and whether the absence of merit in the appeal influenced the decision to dismiss.
The court found that the procedural fairness was adequately observed since the applicant had been notified of the consequences of non-attendance. Additionally, the court held that the absence of apparent merit in the appeal was a relevant factor in the decision to dismiss. The court concluded that an appeal to the High Court would have no prospect of success, as the dismissal was justified under the applicable rules and statutes. The application for special leave to appeal was dismissed, and the Registrar was directed to draw up, sign and seal the order dismissing the application.
Orders
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Background
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Evidence
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Decision
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