SZSWTV v Minister for immigration and border protection & anor

[2015] HCASL 11

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].

[1] SZSWT v Minister for Immigration and Border Protection [2014] FCA 953 at [11].

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