SZUIH v Minister for Immigration and Border Protection

[2015] FCA 829

FEDERAL COURT OF AUSTRALIA

SZUIH v Minister for Immigration and Border Protection [2015] FCA 829

Citation:	SZUIH v Minister for Immigration and Border Protection [2015] FCA 829
Appeal from:	Application for extension of time and leave to appeal: SZUIH v Minister for Immigration & Anor [2015] FCCA 1047
Parties:	SZUIH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 528 of 2015
Judge:	NICHOLAS J
Date of judgment:	10 August 2015
Legislation:	Federal Circuit Court Rules 2001 (Cth) r 13.03C(1)(c) Federal Court Rules 2011 (Cth) r 35.33
Date of hearing:	10 August 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	8
Counsel for the Applicant:	The applicant did not appear
Solicitor for the First Respondent:	Ms N Blake of Clayton Utz
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 528 of 2015

BETWEEN:

SZUIH
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	10 AUGUST 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time and leave to appeal dated 24 April 2015 be dismissed.

2.The applicant pay the first respondent’s costs of the said application.

3.The name of the second respondent be amended to “Administrative Appeals Tribunal”.

4.Until further order, the contents of Exhibit A not be published insofar as it refers to the applicant by his actual name (the court being satisfied that such order is necessary to prevent prejudice to the proper administration of justice).

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 528 of 2015

BETWEEN:

SZUIH
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	10 AUGUST 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Revised from Transcript)

1. Before me is an application for an extension of time and leave to appeal from a decision of a judge of the Federal Circuit Court (Judge Manousaridis) dismissing an application filed by the applicant on 25 March 2015 seeking reinstatement of an application for judicial review of a decision of the Refugee Review Tribunal. The applicant did not appear at the hearing of his application for judicial review on 3 March 2015. His application for judicial review was dismissed by Judge Manousaridis pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The reinstatement application was heard by the primary judge on 16 April 2015.  His Honour delivered an ex tempore judgment.  His Honour was not satisfied that the applicant had provided an adequate explanation for his non-appearance at the hearing of the application for judicial review.  Nor was his Honour satisfied that the applicant’s proposed application for judicial review had any reasonable prospect of success. 

3. The application for an extension of time and leave to appeal against his Honour’s refusal to reinstate the application for judicial review was listed for hearing before me today.  The applicant did not appear when the matter was called at the appointed time.  There is evidence (Exhibit A) before me to indicate that the solicitors for the first respondent wrote to the applicant advising him of the date fixed for the hearing of his application, and informing him that if he did not attend the hearing the first respondent would seek an order dismissing the appeal with costs. 

4. The applicant has filed a draft notice of appeal which asserts that:

   (1)the primary judge was biased;

   (2)the primary judge failed to hear evidence given by the applicant; and

   (3)the primary judge failed to identify a jurisdictional error made by the Tribunal. 

5. I have read the detailed reasons for judgment of Judge Manousaridis, which show that his Honour treated the evidence given by the applicant from the bar table as having been given on oath.  Even so, his Honour did not accept the applicant’s evidence.  The contention that his Honour was biased, or that he failed to hear evidence given by the applicant, is completely unfounded.  The first and second grounds relied upon by the applicant do not have any prospects of success. 

6. The third ground, while asserting that the primary judge failed to identify a jurisdictional error, does not itself identify the nature of the alleged jurisdictional error which is alleged to have escaped his Honour’s attention.  This ground also has no prospects of success. 

7. The first respondent seeks to have this application dismissed pursuant to r 35.33 of the Federal Court Rules 2011 (Cth). I am satisfied it is appropriate to make an order pursuant to that rule, together with an order requiring the applicant to pay the first respondent’s costs.

8. Orders accordingly. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:        

Dated:        21 August 2015