SZUGE v Minister for Immigration and Border Protection

[2015] FCA 154

FEDERAL COURT OF AUSTRALIA

SZUGE v Minister for Immigration and Border Protection [2015] FCA 154

Citation:	SZUGE v Minister for Immigration and Border Protection [2015] FCA 154
Appeal from:	Application for extension of time and leave to appeal: SZUGE v Minister for Immigration & Anor [2014] FCCA 2815
Parties:	SZUGE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1354 of 2014
Judge:	FARRELL J
Date of judgment:	3 March 2015
Catchwords:	MIGRATION – application for extension of time and leave to appeal – appeal from decision of Federal Circuit Court dismissing application for judicial review – decision of Refugee Review Tribunal – non-appearance by the applicant – dismissal under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth)
Legislation:	Federal Circuit Court Rules 2001 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011 (Cth)
Cases cited:	SZUGE v Minister for Immigration & Anor [2014] FCCA 2815
Date of hearing:	3 March 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
Counsel for the Applicant:	The applicant did not appear
Solicitor for the First Respondent:	Ms A Wong of DLA Piper Australia
Counsel 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 1354 of 2014

BETWEEN:

SZUGE
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	3 MARCH 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the costs of the first respondent as agreed or taxed.

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 1354 of 2014

BETWEEN:

SZUGE
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE:	3 MARCH 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to seek leave to appeal and for leave to appeal a judgment of Judge Driver of the Federal Circuit Court delivered on 3 December 2014 in SZUGE v Minister for Immigration & Anor [2014] FCCA 2815.

2. The applicant is a male Chinese citizen. He applied for a Protection (Class XA) visa on 8 March 2013. A delegate of the Minister refused the application on 28 August 2013. In support of the application, the applicant claimed that he had fears relating to his practice of Christianity, as well as a mining incident in which he was involved.

3. The primary judge dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) on the basis that he was not satisfied that the applicant had raised any arguable case for the relief sought. Rule 44.12(2) of the Federal Circuit Court Rules provides: “To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.” Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) provides: “An appeal shall not be brought from a judgment … that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.” Accordingly, the applicant requires leave to appeal.

4. The applicant filed the application for an extension of time and leave to appeal on 19 December 2014, being two days after the date by which the application should have been filed under r 35.13 of the Federal Court Rules2011 (Cth) (Federal Court Rules).

5. The applicant relies upon three grounds for the purposes of his application. They are (without alteration):

   1, I have been actively involved in church [activities] in Australia. My action and religious performance has been evidence by church elder with reference.

   2, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

   3, The Tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable

6. At the hearing today, the applicant was not present approximately 25 minutes after the time scheduled for the hearing. Attempts were made to contact the applicant at the mobile number held by the solicitor appearing for the Minister with the assistance of the interpreter.

7. The Minister made an application under r 35.33(1)(a)(i) of the Federal Court Rules to dismiss the application by reason of the applicant’s non-appearance. The Minister also drew my attention to the power under s 25(2B)(bb)(ii) of the Federal Court Act to dismiss an appeal for failure of an appellant to appear at a hearing relating to an appeal.

8. The Minister filed in court an affidavit affirmed by an administrative assistant employed by the Minister’s solicitors detailing the service of the Minister’s written submissions on the applicant under cover of a letter dated 18 February 2015. I note that the address to which the submissions was sent is the same as the applicant has listed as his address in his application. The letter advised the applicant that the hearing would take place at 10.15 am today at Courtroom 19D. I am satisfied that the applicant had been made aware of the proceedings.

9. A court officer checked Courtroom 19D twice, but was unable to locate the applicant. I also asked that the matter be called when the hearing commenced at approximately 10.40 am.

10. I have considered the written submissions filed by the Minister. The applicant did not file written submissions. I have reviewed the Statement of Decision and Reasons of the Tribunal dated 27 March 2014 and the reasons of the primary judge. I do not perceive any jurisdictional error by the Tribunal or any appellable error in the reasons of the primary judge.

11. I therefore do not consider that the grounds of appeal have merit. I determined to dismiss the application under r 35.33(1)(a)(i) of the Federal Court Rules. I also ordered that the applicant pay the Minister’s costs as agreed or taxed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:        4 March 2015