SZULS v Minister for Immigration and Border Protection

[2015] FCA 799

FEDERAL COURT OF AUSTRALIA

SZULS v Minister for Immigration and Border Protection [2015] FCA 799

Citation:	SZULS v Minister for Immigration and Border Protection [2015] FCA 799
Appeal from:	Application for extension of time and leave to appeal: SZULS v Minister for Immigration and Border Protection [2015] FCCA 987
Parties:	SZULS v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 536 of 2015
Judge:	FARRELL J
Date of judgment:	7 August 2015
Legislation:	Federal Circuit Court Rules 2011 (Cth) r 44.12 Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Court Rules 2011 (Cth) rr 35.13(a), 35.33(1)(a)(i)
Cases cited:	SZULS v Minister for Immigration and Border Protection [2015] FCCA 987
Date of hearing:	3, 7 August 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	14
Counsel for the Applicant:	The applicant did not appear
Solicitor for the First Respondent:	Mr K Eskerie of Sparke Helmore Lawyers
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 536 of 2015

BETWEEN:

SZULS
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	7 AUGUST 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the second respondent be changed so as to read “Administrative Appeals Tribunal”.

2.The application be dismissed.

3.The applicant pay the first respondent’s costs, 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 536 of 2015

BETWEEN:

SZULS
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE:	7 AUGUST 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 Manousaridis of the Federal Circuit Court of Australia delivered on 14 April 2015: see SZULS v Minister for Immigration and Border Protection [2015] FCCA 987 (“SZULS”).

2. The applicant is a male citizen of the People’s Republic of China. He arrived in Australia on 3 June 2013. He applied for a Protection (Class XA) visa on 13 June 2013. The applicant failed to attend an interview with a delegate of the Minister; the delegate refused to grant the visa on 2 December 2013. The applicant appeared at a Tribunal hearing on 2 May 2014 and the Tribunal advised the applicant of its decision to affirm the delegate’s decision in its Statement of Decision and Reasons of 8 May 2014.

3. The primary judge dismissed the applicant’s application for judicial review of the Tribunal’s decision under r 44.12(1)(a) of the Federal Circuit Court Rules 2011 (Cth) on the basis that the application did not raise an arguable claim for the relief sought. The primary judge’s judgment is interlocutory in nature: r 44.12(2) of the Federal Circuit Court Rules. Therefore, the applicant requires leave to appeal to this Court: s 24(1A), Federal Court of Australia Act 1976 (Cth).

4. Under r 35.13(a) of the Federal Court Rules 2011 (Cth), an application for leave to appeal must be filed within 14 days of the date on which the judgment from which the appeal is sought was pronounced or the order is made. The primary judgment was delivered and orders were made on 14 April 2015; the application for leave to appeal needed to be filed by 28 April 2015. The applicant filed his application for an extension of time to seek leave to appeal and for leave to appeal in this Court on 13 May 2015. The applicant therefore requires an extension of 15 days.

5. The applicant identified two grounds in the application for extension of time (as written, except the name of the person alleged to have threatened the applicant has been redacted):

   1. I was the owner of a pear orchard in China. [Mr X], formerly served in the armed police intended to buy my pear orchard. I and wife refused his request. [Mr X] had his strong supporter. The younger brother or [Mr X’s] wife was the section manager of the PSB in our local town. [Mr X] hired the thug to harm me in his attempt to seize my orchard. For my life safety, I sold my truck and left to Australia for protection

   2. I believe the Tribunal member failed taking all my claim and evidence into account according to S91 R of Migration Act 1958 making jurisdictional error.

6. The applicant also filed an affidavit in support of his application. The affidavit appends a draft notice of appeal setting out the same grounds as in the application. In the affidavit, the applicant explains his delay in filing the application as follows (as written):

   I was heard that I must lodge my application to the Co0urt within 28 days. I have no money to engage a solicitor to prepare my application forms. So I have to seek a person for free assistance to prepare my application, therefore it took a long time to finish my application and over the Court limited time. I beg the Court would consider my difficulty and forgive my error and grant my application.

7. The hearing of this matter was scheduled for 10:15 am on Monday, 3 August 2015. The applicant was not present in Court at that time. I adjourned the matter until 10:35 am.

8. During the adjournment, the Minister’s representative was able to contact the applicant by telephone and with the assistance of an interpreter. The applicant informed the Minister’s representative that his address for service was correct however he had not received correspondence relating to the hearing as he had been working in Canberra. The applicant asked for an adjournment of one month.

9. I ordered that the applicant pay the Minister’s costs thrown away and adjourned the matter until 10:15 am today. I asked the Minister’s representative to contact the applicant by telephone again to inform him of the adjournment and the new time and date for the hearing of his application. I also asked the Minister’s representative to inform the applicant that I would dismiss the application today if the applicant did not appear. The Minister’s representative sent an email to my chambers at approximately 1:00 pm on Monday in which he confirmed that he had complied with my directions.

10. The applicant was not present in Court today at 10:15 am. The Minister’s representative confirmed that he had spoken with the applicant with the assistance of an interpreter, and that the applicant’s only response to the information of the time for the hearing today was “OK”. I adjourned the matter until 10:30 am to allow the applicant time to appear. Upon resuming at 10:30 am, I asked the court officer to call the matter both outside the courtroom and at the Registry. There was no appearance by the applicant.

11. The Minister made an application pursuant to r 35.33(1)(a)(i) of the Federal Court Rules that the applicant’s application be dismissed because the applicant did not appear. The Minister tendered six letters to the applicant at his address for service from both the law firm acting for the Minister and the Federal Court relating to the hearing scheduled on Monday and today. I have reviewed those letters. I am satisfied that the Minister’s representative and the Registry sent notice to the applicant of the listings of this matter to his address for service. I am satisfied by the Minister’s representative’s advice concerning his telephone call with the applicant that the applicant was aware that his application had been set down for hearing at 10.15 am today.

12. The applicant’s reason for delay is not an acceptable one. The applicant has made no attempt to prosecute his application: he has not filed written submissions or attended the hearing to provide oral submissions in support of his application.  I have carefully read the Decision Record of the Tribunal and the primary judge’s reasons. I am satisfied that the applicant has not identified an arguable case for jurisdictional error on the part of the Tribunal or appellable error on the part of the primary judge for the same reasons as set out in the Minister’s written submissions to this Court.

13. The Minister made an application to amend the name of the second respondent to “Administrative Appeals Tribunal” and for costs as agreed or taxed.

14. I will order that the name of the second respondent be changed to “Administrative Appeals Tribunal”, dismiss the application pursuant to r 35.33(1)(a)(i) of the Federal Court Rules and order the applicant to pay the first respondent’s costs, as agreed or taxed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:       7 August 2015