SZULX v Minister for Immigration and Border Protection

[2015] FCA 928

FEDERAL COURT OF AUSTRALIA

SZULX v Minister for Immigration and Border Protection [2015] FCA 928

Citation:	SZULX v Minister for Immigration and Border Protection [2015] FCA 928
Appeal from:	Application for and extension of time and leave to appeal: SZULX v Minister for Immigration & Anor [2015] FCCA 1135
Parties:	SZULX v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 407 of 2015
Judge:	NICHOLAS J
Date of judgment:	11 August 2015
Legislation:	Migration Act 1958 (Cth) s 476 Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)
Date of hearing:	11 August 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	8
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms S Given of Sparke Helmore
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 407 of 2015

BETWEEN:

SZULX
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	11 AUGUST 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time and leave to appeal filed on 17 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.

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 407 of 2015

BETWEEN:

SZULX
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	11 AUGUST 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Revised from Transcript)

1. Before me is an application by the applicant for an extension of time and leave to appeal. Leave is sought to appeal from a decision of a judge of the Federal Circuit Court of Australia, Judge Nicholls, made on 30 March 2014. By that decision, his Honour dismissed the applicant’s application made pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 30 April 2014 on the ground that there was no arguable case for the relief sought. The primary judge’s order was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). That order was interlocutory in nature and, hence, leave to appeal the decision is necessary.

2. The application was listed for hearing today.  There was no appearance by the applicant when the matter was called.

3. There is evidence before me to indicate that as recently as 4 August 2015 the lawyers for the first respondent wrote to the applicant confirming his application was listed for hearing at 2.15pm today and that he was required to attend.  The letter includes a warning to the effect that, if the applicant did not attend, the first respondent would seek an order that his application be dismissed and that he pay the first respondent’s legal costs.

4. The applicant’s application for an extension of time and leave to appeal is made pursuant to r 35.14 of the Federal Court Rules 2011 (Cth). Rule 35.33 provides that the Court may, if a party is absent when such an application is called for hearing, make an order dismissing the application. Of course, the Court is not bound to make such an order, and can, in an appropriate case, stand the application over to another date in the event that it has reason to believe that there was a reasonable excuse for the applicant’s non-attendance particularly if the application appears to have some merit.

5. In the present case, I have reviewed the papers in preparation for today’s hearing, including the reasons for decision of the Tribunal and reasons for decision of the primary judge.  I have also read the affidavit filed by the applicant in support of the application now before the Court, together with the draft grounds of appeal upon which he was apparently proposing to rely.

6. Although I have not had the opportunity of hearing oral submissions from the applicant in relation to those grounds (he has not filed any written submissions in accordance with previous directions), it is nevertheless apparent from the nature of them, together with a consideration of the Tribunal’s reasons for decision and the primary judge’s reasons for decision, that the present application has no reasonable prospects of success.

7. The application for an extension of time will be dismissed.  The applicant must pay the first respondent’s costs of the application.

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:        24 August 2015