SZTPE v Minister for Immigration and Border Protection

[2015] FCCA 460

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTPE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 460

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – whether application should be dismissed for non-appearance pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth) ss.412, 494C
Federal Circuit Court Rules 2001 (Cth) r.13.03C
Migration Regulations 1994 (Cth) reg.4.31

Applicant: SZTPE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2973 of 2013

Judgment of: Judge Emmett

Hearing date: 18 February 2015

Date of Last Submission: 18 February 2015

Delivered at: Sydney

Delivered on: 18 February 2015

REPRESENTATION

There was no appearance by or on behalf of the applicant.

Counsel for the Respondent: Mr Mark Cleary

Solicitors for the Respondent: DLA Piper

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2973 of 2013

SZTPE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 29 November 2013, be dismissed by reason of the failure of the applicant to attend today’s scheduled hearing.

2. In support of that application, counsel for the first respondent, Mr Cleary, read the affidavit of Kimberly Fay Rambaugh, affirmed 12 February 2015. That affidavit annexed a letter dated 11 February 2015 addressed to the applicant at both the applicant’s address for service as identified on his application to this Court, and a further address that the first respondent believed may be relevant.

3. That letter enclosed the first respondent’s outline of submissions and provided the date, time and location of today’s hearing.

4. On 6 February 2014, the applicant attended a directions hearing before me. On that occasion, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support. The matter was set down for final hearing today at 10:15am, before me. There has been no document filed by or on behalf of the applicant, either in accordance with those directions, or otherwise.

5. There has not been any communication received by this Court from the applicant, seeking an adjournment of today’s hearing or for any other reason. I am informed by counsel for the first respondent that there has been no communication received by the first respondent from the applicant for any reason.

6. In the circumstances, I am satisfied that the applicant is aware of today’s scheduled hearing and, for whatever reason, has chosen not to attend.

7. For the sake of completeness in considering whether the proceedings should be dismissed pursuant to r.13.03C(1)(c) of the Rules, I have had regard to the grounds of the application identified by the applicant in his initiating application, filed 29 November 2013. Those grounds are as follows:

   “1. I have already made an inquiry by calling the RRT inquiry line within the time frame where the employee said there was no problem for missing the deadline and will send you a letter to explain why you did not lodge your application within the time limit

   2. On 8 August 2013 I received a refusal notification from the Immigration Department where I was extremely shocked at their decision to the point that I had to recover in bed for two weeks, a medical report is attached with a letter to the RRT explaining the reason why I have missed the deadline for lodging my application.

   3. I believe that it is important to give me a chance to review the application where I did not even get the chance at the immigration department to explain myself comfortably for confidential reasons and have to discuss that with my case officer at the immigration department.”

8. I have also had regard to the applicant’s affidavit filed in support of his initiating application, annexing a copy of the RRT decision record.

9. That decision record makes clear that the applicant filed his application for review of a decision of a delegate of the first respondent to refuse him a protection visa (“the Delegate”) more than 28 days after deemed receipt of the Delegate’s decision. The RRT found that, in accordance with s.494C of the Migration Act 1958 (Cth) (“the Act”), the applicant is taken to have been notified of the delegate’s decision on 19 August 2013 and that the prescribed period within which the application for review by the Refugee Review Tribunal could be made ended on 16 September 2013. The RRT noted that the application for review was not received by the Refugee Review Tribunal until 1 October 2013.

10. The RRT stated that it wrote to the applicant on 22 October 2013, informing the applicant that his application for review appeared to be invalid because it was not lodged within the relevant time limit and inviting the applicant to submit any comments.

11. The RRT further noted that the applicant provided an explanation as to why it was that his application was late. However, where the application was lodged outside the prescribed period, in accordance with s.412(1)(b) of the Act and reg.4.31 of the Migration Regulations 1994 (Cth) (“the Regulations”), it would appear that the RRT had no alternative other than to determine that it did not have jurisdiction to review the Delegate’s decision.

12. The RRT’s findings and conclusions would appear to be open to it on the evidence and materials before it and for the reasons it gave.

13. The RRT found that it was satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

14. Whilst I make no final determination as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the RRT’s decision record and none has been identified by the applicant in the grounds of his application.

15. Accordingly, the application made by the first respondent this morning is appropriate and the proceeding should be dismissed pursuant to r.13.03C(1)(c) of the Rules with costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 4 March 2015