SZUOZ v Minister for Immigration and Border Protection

[2016] FCA 932

FEDERAL COURT OF AUSTRALIA

SZUOZ v Minister for Immigration and Border Protection [2016] FCA 932

Appeal from:

Application for leave to appeal: SZUOZ v Minister for Immigration and Border Protection [2016] FCCA 990

File number:

NSD 520 of 2016

Judge:

BROMBERG  J

Date of judgment:

1 August 2016

Catchwords:

PRACTICE AND PROCEDURE – dismissal of application for leave to appeal interlocutory judgment of the Federal Circuit Court for want of appearance by the applicant – r 35.32 of the Federal Court Rules 2011 (Cth)

Legislation:

Federal Court Rules 2011 (Cth) r 35.32

Cases cited:

MZZWL v Minister for Immigration and Border Protection [2015] FCA 73

SZUOZ v Minister for Immigration and Border Protection [2016] FCCA 990

Date of hearing:

1 August 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

5

Counsel for the Applicant:

The Applicant did not appear

Counsel for the First Respondent:

Mr DA Hughes

Solicitor for the First Respondent:

DLA Piper Australia

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 520 of 2016

BETWEEN:

SZUOZ

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	BROMBERG  J
DATE OF ORDER:	1 AUGUST 2016

THE COURT ORDERS THAT:

1.The Applicant’s application for leave to appeal be dismissed.

2.The Applicant pay the First Respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1. The applicant is a citizen of China. On 26 April 2013, he lodged an application for a Protection Visa with the Department of Immigration and Border Protection.  His application was refused by a delegate of the first respondent (the Minister).  The applicant then applied to what was then called the Refugee Review Tribunal and what is now the Administrative Appeals Tribunal (the Tribunal), for a review of the delegate’s rejection of his application.  He was unsuccessful before the Tribunal and applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.  The application for judicial review was dismissed.  Reasons for that judgment are published as SZUOZ v Minister for Immigration and Border Protection [2016] FCCA 990.

2. On 11 April 2016, the applicant made an application for leave to appeal the judgment of the Federal Circuit Court.  Given that the orders made by the Federal Circuit Court were interlocutory, it is necessary for the applicant to obtain the leave of this Court to bring his appeal. 

3. The application for leave to appeal was listed to be heard today at 2.15 pm.  The applicant did not appear.  I was informed by Mr Hughes, who appeared for the Minister, that telephone contact was made with the applicant at about 2.15 pm.  I was informed that the applicant advised a representative of the Minister that he was in Newcastle and that he forgot about the hearing of his application.  I am satisfied, both from the content of that conversation and also by reason of the content of an affidavit of Ajeshni Devi Sharma of 1 August 2016, that the applicant was aware of the hearing date for his application. 

4. The Minister submits that pursuant to r 35.32 of the Federal Court Rules 2011 (Cth) the application should be dismissed for the applicant’s failure to attend the hearing. There are a number of options available to me but in the circumstances, the interests of justice are best served by making an order dismissing the appeal on the ground of the applicant’s failure to attend the hearing: MZZWL v Minister for Immigration and Border Protection [2015] FCA 73 at [3]–[5].

5. Accordingly, I will make an order dismissing the application and a further order that the applicant pay the first respondent’s costs. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated:        12 August 2016