SZTNQ v Minister for Home Affairs
[2019] FCA 652
•10 May 2019
FEDERAL COURT OF AUSTRALIA
SZTNQ v Minister for Home Affairs [2019] FCA 652
Appeal from: Application for extension of time: SZTNQ v Department of Home Affairs [2018] FCCA 3409 File number: NSD 2192 of 2018 Judge: ALLSOP CJ Date of judgment: 10 May 2019 Catchwords: MIGRATION – application for second protection visa made after previous protection visa application refused – application dismissed with costs for want of appearance Legislation: Migration Act 1958 (Cth) s 48A
Federal Court Rules 2011 (Cth) r 35.33(1)(a)
Date of hearing: 10 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 6 Counsel for the Applicant: The applicant did not appear Counsel for the Respondent: A Moss of Clayton Utz ORDERS
NSD 2192 of 2018 BETWEEN: SZTNQ
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
10 MAY 2019
THE COURT ORDERS THAT:
1.The application for an extension of time in which to file and serve an application for leave to appeal be dismissed with costs.
2.The Minister, through his solicitors, serve upon the applicant a copy of these orders and these reasons when settled.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)ALLSOP CJ:
This is an application for an extension of time in which to file and serve an application for leave to appeal from orders of a judge of the Federal Circuit Court of Australia made on 30 October 2018 dismissing an application for judicial review of a decision of an officer of the Department of Home Affairs on 5 September 2018, which determined that the applicant's application for a protection visa dated 31 August 2018 was invalid by reason of s 48A of the Migration Act 1958 (Cth). The evidence before me is that on 3 April 2019, by email from the Court, by email of 4 April 2019 from the solicitors for the Minister, and by further email from solicitors for the Minister of 3 May 2019, the applicant was informed at his residential address and at an email address provided to the Minister and the Court, that the case was before the Court today at not before 11.15am before me.
I had the matter called three times outside. There was no appearance. There has been no appearance. The details of the applicant's claim for protection need not be dealt with. It is sufficient to note that on 3 September 2012, the applicant applied for a protection visa and on 20 December 2012 a delegate refused to grant the visa. That decision was affirmed by the then Refugee Review Tribunal on 24 October 2013, and on 20 November 2013 the applicant applied to the Federal Circuit Court of Australia for judicial review. That matter was resolved on 26 March 2014, being dismissed for the failure of the applicant to appear.
By application dated 31 August 2018 and received on 3 September 2018, the applicant purported to apply for a protection visa for the second time.
The terms of s 48A of the Migration Act are clear. The primary judge dismissed the application on the basis of the terms of s 48A which prohibit the acceptance of an application for a protection visa once one has been dealt with. Section 48A, in particular subs (1C) does appear to be a complete answer to the applicant's case. However, I am asked to deal with the matter today on the basis of the applicant's non-appearance under r 35.33(1)(a) of the Federal Court Rules 2011 (Cth). I will do so and I will dismiss the application with costs by reason of a non-appearance.
In circumstances where an order has been made against a party who was not present, that party has an entitlement to seek to set aside the order. If the applicant avails himself of this right he will have to deal with the argument against his second application.
For now the only orders I will make are as follows:
(1)The application for an extension of time in which to file and serve an application for leave to appeal be dismissed with costs.
(2)The Minister, through his solicitors, serve upon the applicant a copy of these orders and these reasons when settled.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 10 May 2019
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