SZSWV v Minister for Immigration and Border Protection
[2014] FCA 513
•19 May 2014
FEDERAL COURT OF AUSTRALIA
SZSWV v Minister for Immigration and Border Protection [2014] FCA 513
Citation: SZSWV v Minister for Immigration and Border Protection [2014] FCA 513 Appeal from: SZSWV v Minister for Immigration and Border Protection [2013] FCCA 2146 Parties: SZSWV, SZSWW and SZSWX v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 3 of 2014 Judge: FOSTER J Date of judgment: 19 May 2014 Legislation: Federal Court of Australia Act 1976 (Cth), s 25(2B)(bb)
Federal Court Rules 2011, r 40.02(b)Date of hearing: 19 May 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 15 Solicitor for the Appellants: The Appellants did not appear Solicitor for the First Respondent: Mr R Baird of Clayton Utz Solicitor for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 3 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSWV
First AppellantSZSWW
Second AppellantSZSWX
Third AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
19 MAY 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave be granted to the first respondent to file in Court the affidavit of Lewis Josef Robert d’Avigdor affirmed on 19 May 2014.
2.The appeal be dismissed.
3.Pursuant to r 40.02(b) of the Federal Court Rules 2011, the first and second appellants pay the first respondent’s costs of and incidental to the appeal assessed as a lump sum at $4,000.
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 3 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSWV
First AppellantSZSWW
Second AppellantSZSWX
Third AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FOSTER J
DATE:
19 MAY 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
There are three appellants in this matter. The first two appellants are husband and wife and the third appellant is their child. The first appellant is a citizen of Nepal.
In February 2008, the second appellant arrived in Australia on a student visa. On 18 October 2008, the first appellant came to Australia on a student dependent visa. The third appellant was born in Australia on 7 April 2011.
On 20 December 2011, the appellants applied for protection visas. The first appellant made claims to be owed protection obligations and the second and third appellants relied on their relationship with him as the sole basis of their applications for protection.
On 22 May 2012, a delegate of the first respondent (the Minister) refused to grant protection visas to the appellants.
The appellants then applied for a review of that decision in the Refugee Review Tribunal (the Tribunal). On 30 April 2013, the Tribunal affirmed the delegate’s decision.
On 27 May 2013, the appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 12 December 2013, the Federal Circuit Court dismissed that application with costs.
On 2 January 2014, the appellants filed a Notice of Appeal in this Court.
The two grounds specified in that Notice of Appeal are in very general terms and have not been particularised in any useful way. It is not possible to discern from those grounds any legitimate ground of appeal.
On 7 January 2014, a Registrar of this Court made directions in the appeal. Amongst other things, the Registrar directed the appellants to file and serve a Written Outline of Submissions by no later than 10 business days before the hearing date, unless otherwise directed. The appellants should have filed their Written Outline by no later than 2 May 2014. In fact, they have not filed any Written Outline.
Subsequently, the appeal was fixed for hearing before me today. Both the Court and the solicitors for the first respondent formally notified the appellants of the fact that the matter was listed for hearing this morning and gave appropriate details of both the time and place of that hearing. I am satisfied that the appellants were aware that their appeal was fixed for hearing before me at 10.15 am this morning.
The appellants have not attended at Court this morning. The matter has been called outside on two occasions, once at approximately 10.18 am and again at 10.50 am. There was no appearance either by or on behalf of the appellants on either of the occasions that the matter was called and there has been no appearance at all at Court this morning.
The Minister applies for an order dismissing the appeal pursuant to s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) and an order for costs against the appellants. He says that the provisions of subsection (2B)(bb) of s 25 are engaged because the appellants have failed to comply with a direction of the Court (viz the requirement to file a Written Outline of their Submissions) and also failed to appear at the hearing of their appeal. I agree with that submission. I therefore propose to make the orders sought by the Minister.
The Minister also applies for a lump sum costs order pursuant to r 40.02(b) of the Federal Court Rules 2011. In support of that application, the Minister reads the affidavit of Lewis Josef Robert D’Avigdor affirmed today. Mr D’Avigdor proved that, upon the taxation of costs, the Minister is likely to recover a sum in the range of $4,054.96 and $4,678.80.
The appellants are not aware that the Minister would be seeking a lump sum costs order against them. However, they have not attended the hearing this morning and that appears to have been a deliberate choice made by them. I think that I should make a lump sum costs order in the amount of $4,000 and I propose to do so.
There will be orders accordingly.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 20 May 2014
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