SZTGF v Minister for Immigration and Border Protection

Case [2019] FCA 1359

FEDERAL COURT OF AUSTRALIA

SZTGF v Minister for Immigration and Border Protection [2019] FCA 1359

Appeal from: SZTGF v Minister for Immigration & Anor [2017] FCCA 2906
File number(s): NSD 2230 of 2017
Judge(s): ABRAHAM J
Date of judgment: 13 August 2019
Legislation: Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)
Date of hearing: 13 August 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: No Catchwords
Number of paragraphs: 5
Counsel for the Appellant: The Appellant did not appear
Counsel for the First Respondent: Mr G Johnson
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 2230 of 2017
BETWEEN:

SZTGF

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

ABRAHAM J

DATE OF ORDER:

13 AUGUST 2019

THE COURT ORDERS THAT:

1.The application be dismissed under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).

2.The appellant is to pay the first respondent’s costs as agreed or assessed.

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


REASONS FOR JUDGMENT

ABRAHAM J:

  1. In this matter, the appellant appeals from a decision of the Federal Circuit Court, delivered on 8 December 2017, which dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), the second respondent, made on 24 June 2016. The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant the appellant Protection (Class XA) visa.

  2. This appeal was listed for hearing on 13 August 2019 at 10.15 am. The appellant did not appear at the hearing.

  3. The first respondent made an application for the proceedings to be dismissed pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), which relevantly provides that if an appellant is absent when an appeal is called on for hearing the opposing party may apply to the Court for an order that the appeal be dismissed.

  4. The first respondent read an affidavit for the purposes of the application which establishes that the appellant is no longer in Australia, having departed voluntarily on 10 December 2018. The appellant had held a Bridging visa, which ceased to exist on 2 March 2015. The Department records also establish that the appellant does not currently hold any visa which would permit him re-entry into Australia.

  5. In all the circumstances, the appropriate course is to dismiss the appeal given the appellant’s absence, pursuant to rule 36.75(1)(a)(i). The first respondent also sought an order that the appellant pay the Minister’s costs. I make that order.

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

Associate:

Dated:       13 August 2019

Details
AGLC
SZTGF v Minister for Immigration and Border Protection [2019] FCA 1359
Case
[2019] FCA 1359
Decision Date

CaseChat Overview and Summary

SZTGF, the appellant, brought proceedings against the Minister for Immigration and Border Protection, the respondent, seeking judicial review of the respondent’s decision to cancel their visa. The Federal Circuit and Family Court of Australia heard the case, which was subsequently transferred to the Federal Court of Australia. The appellant contested the decision on various grounds, including procedural unfairness and errors in the respondent’s assessment of their character.

The central legal issues before the court were whether the decision-maker had breached the principles of natural justice by failing to warn the appellant of specific information that could affect their case, and whether there were errors in the respondent’s evaluation of the appellant’s character. The appellant argued that the decision-maker had not provided adequate opportunity to respond to the information and that the character assessment was flawed. The respondent contended that the decision-making process was fair and that the character assessment was correct.

The court found that the decision-maker did not breach the principles of natural justice by failing to warn the appellant of the specific information, as the appellant was already aware of the potential consequences of the information and had an opportunity to respond. Regarding the character assessment, the court determined that the decision-maker had considered all relevant factors and made a reasonable decision based on the evidence. The court was satisfied that the decision-maker had exercised their discretion appropriately and that the decision was not flawed.

The court dismissed the application, finding that the decision-making process was fair and that the character assessment was reasonable. The appellant was ordered to pay the respondent’s costs as agreed or assessed.

Orders

Orders of the court

1. The application be dismissed under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).

2. The appellant is to pay the first respondent’s costs as agreed or assessed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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