SZUMD v Minister for Immigration and Border Protection
[2015] FCA 840
•7 August 2015
FEDERAL COURT OF AUSTRALIA
SZUMD v Minister for Immigration and Border Protection [2015] FCA 840
Citation: SZUMD v Minister for Immigration and Border Protection [2015] FCA 840 Appeal from: Application for leave to appeal: SZUMD v Minister for Immigration & Anor [2015] FCCA 1485 Parties: SZUMD v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): NSD 698 of 2015 Judge(s): SIOPIS J Date of judgment: 7 August 2015 Date of hearing: 7 August 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 16 Counsel for the Appellant: The Appellant did not appear. Counsel for the First Respondent: Ms F Taah Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 698 of 2015
BETWEEN: SZUMD
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
7 AUGUST 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant’s application for leave to appeal filed on 16 June 2015 is dismissed.
2.The applicant is to pay the first respondent’s costs fixed in the sum of $1,700.
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 698 of 2015
BETWEEN: SZUMD
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE:
7 AUGUST 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for leave to appeal from the decision of a judge of the Federal Circuit Court of Australia which was delivered on 4 June 2015, dismissing the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).
The applicant is a citizen of India who arrived in Australia on 3 October 2007 on a student visa. On 2 March 2010, the applicant applied for a further student visa, which was refused. The applicant’s bridging visa expired on 30 November 2010. The applicant remained as an unlawful non-citizen in Australia until she lodged an application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) for a protection visa on 28 March 2013.
The applicant claimed that she was from a traditional Jat Sikh family in Punjab, India. She said that her father had slapped her and stopped her from going out when she refused to marry the person that her family had arranged for her to marry during her visit to India in 2010. The applicant also claimed that her uncle had threatened to kill her if she continued to resist the marriage arrangement. The applicant claimed that she wanted to marry a man in Australia whom she loved, but feared that her relatives would inflict harm on both her and the man, who she said is from a lower caste.
The delegate of the first respondent rejected the applicant’s claim for a protection visa.The Tribunal refused the applicant’s application for a review of the delegate’s decision.
THE FEDERAL CIRCUIT COURT
The applicant sought judicial review of the Tribunal’s decision before the Federal Circuit Court.
That application was made a day late. The Federal Circuit Court extended the time, but summarily dismissed the applicant’s application for judicial review.
The primary judge considered five complaints made by the applicant. The primary judge determined that none of the complaints demonstrated an arguable case for jurisdictional error. This was because the first four complaints sought, in essence, to take issue with the merits of the Tribunal’s decision. The fifth complaint was in relation to the absence of an interpreter. The primary judge dismissed that complaint on the basis that it was evident that the applicant had understood the proceedings and there was no evidence that she had been prejudiced because of the absence of an interpreter.
APPLICATION FOR LEAVE TO APPEAL
The applicant filed in this Court on 16 June 2015 an application for leave to appeal from the decision of the Federal Circuit Court, it being a decision in respect of which leave to appeal was necessary as it was an interlocutory decision.
The applicant did not file a draft notice of appeal, but it is possible to discern from her application for leave to appeal, three proposed grounds of appeal. These are:
(1)I haven’t got any proper answers, why my adjournment is closed,
(2)Unfairness – a non-citizen person of Australia, and
(3)Haven’t allowed me to bring witnesses.
None of these proposed grounds of appeal identify any error by the primary judge. Accordingly, I am not satisfied that the primary judge’s decision is attended by sufficient doubt. I, therefore, dismiss this application for leave to appeal on its merits.
However, on the application of the first respondent, I also dismiss this application for leave to appeal under r 35.33(1)(a)(i) of the Federal Court Rules 2011, on the basis of the non‑appearance of the applicant at the hearing today.
I have received into evidence this morning, two letters which were written to the applicant - one from the Court advising the applicant of the hearing today at 10:15 am; and the other from counsel for the first respondent’s instructing solicitors, the Australian Government Solicitor. The latter letter advised the applicant of the hearing today and also that should she fail to appear at the hearing today, orders may be sought that her application be dismissed with costs without further notice to her.
There was one complicating factor. The hearing in this courtroom was listed on the Court’s notice board to be heard at 10:15 am in another courtroom. The courtroom listed on the notice board was monitored by Court officers to intercept the applicant in the event that she arrived at that courtroom, rather than at this courtroom. However, the applicant did not arrive at either courtroom.
The Court waited until about 10:40 am before commencing the hearing. The matter was called in the foyer outside this courtroom and I then out of caution adjourned the hearing for five minutes to permit the Court officers to see whether the applicant had appeared or was waiting in or outside of the other courtroom. The Court officers reported that the applicant was not present at that courtroom. In addition, my associate endeavoured to telephone the applicant on her mobile telephone, but there was no answer.
Accordingly, in the circumstances, I am satisfied that there has been a non‑appearance by the applicant. I also dismiss this application for leave to appeal on that ground as well.
The applicant is to pay the first respondent’s costs fixed in the sum of $1,700.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 13 August 2015
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