SZUUX v Minister for Immigration and Border Protection

[2018] FCA 1399

FEDERAL COURT OF AUSTRALIA

SZUUX v Minister for Immigration and Border Protection [2018] FCA 1399

Appeal from:

Application for extension of time and leave to appeal: SZUUX v Minister for Immigration & Anor [2018] FCCA 583

File number:

NSD 294 of 2018

Judge:

BARKER J

Date of judgment:

28 August 2018

Catchwords:

MIGRATION – application for protection (class XA) visa – application for extension of time and leave to appeal from Federal Circuit Court of Australia decision – application dismissed pursuant to R 35.33 of the Federal Court Rules 2011 (Cth) by reasons of the applicant’s non-appearance

Legislation:

Migration Act 1958 (Cth)

Federal Court Rules 2011 (Cth) R 35.33

Date of hearing:

28 August 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

14

Counsel for the Applicant:

The Applicant did not appear

Counsel for the First Respondent:

Mr H Gao

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

NSD 294 of 2018

BETWEEN:

SZUUX

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	BARKER J
DATE OF ORDER:	28 AUGUST 2018

THE COURT ORDERS THAT:

1.The application for extension of time and leave to appeal be dismissed.

2.The applicant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1. On 28 August 2018, I dismissed the applicant’s application for extension of time and leave to appeal.  These are the edited ex tempore reasons I gave for dismissing the applicant’s application.

2. In the circumstances as they have developed, the Court considers there is no real alternative but to dismiss the application for extension of time and leave to appeal.  The situation is that the applicant has applied for an extension of time and leave to appeal from orders of the Federal Circuit Court of Australia dismissing her application for judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal, which affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant her a protection (class XA) visa under the Migration Act 1958 (Cth).

3. The applicant had an Australian tourist visa granted in 2011.  It expired in early 2012.  In August 2012, she applied for a protection visa on the basis of asserted Falun Gong practices of her family and herself. 

4. In December 2012, a delegate refused the applicant’s protection visa application. 

5. On a subsequent merits review in the Tribunal, she was unsuccessful in having that decision reversed, and the Tribunal decided not to grant the applicant a protection visa, finding her claims disingenuous and her evidence inconsistent.

6. The applicant then applied to the Circuit Court for judicial review. On 5 February 2018, the Circuit Court dismissed the applicant’s application for judicial review under the rules of that Court, at what is called a “show cause” hearing under R 44.12(1)(a). It is from that decision that this application, which was only about 11 days out of time, was made.

7. The applicant has provided with the application draft grounds of appeal, which are twofold: 

   (1)that there was a wrong application of law; and

   (2)that there was procedural unfairness.

8. Since the filing of that application for extension of time and leave to appeal under the rules of this Court, the applicant appears not to have further involved herself in this proceeding.  She has not, for example, filed any submissions to support the application.  The position is that she has not been in contact with the Court concerning today’s hearing, despite there being little doubt that proper notification of the hearing today has been provided. 

9. I have been given by the lawyer for the Minister today two documents dated 21 August 2018.  The substantive correspondence is a letter to the applicant referring to this proceeding and enclosing a sealed copy of the Minister’s submissions and a list of authorities and, more to the point, reminding her that the hearing is listed for hearing at 2.15 pm on 28 August 2018 at the Federal Court of Australia, Law Courts Building, Queens Square, Sydney – that is, exactly where we are now.

10. She was also advised in the letter that should she or a lawyer acting on her behalf fail to appear on the above date, orders may be sought that her application be dismissed with costs without further notice.  I am advised and accept that that was sent by email the same day to the email address previously provided by the applicant.  There was no response to that.  And there is nothing on the Court file to indicate, as I have intimated, that the applicant has been in touch with or has communicated with the Court generally since the application was filed, or in relation to the hearing today. 

11. It is in those circumstances that the Minister applies for the application to be dismissed. Rule 35.33 of the Federal Court Rules 2011 (Cth) is headed “Absence of a party”. Subrule (1) provides that:

    If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, …

    And I interpolate to say that includes this application.

    … any other party may apply to the Court for an order that:

    (a)      if the absent party is the applicant:

    (i)        the application be dismissed; …

12. In all the circumstances that I have set out, it appears appropriate that the application be dismissed.  Whilst it is not necessary for the purpose of exercising this power for the Court to express any views or concluded views about the merits of a particular application before the Court, a court may, on some occasions, at least, be very cautious about exercising the dismissal power where the matter appears to have some substance to it.

13. On the Court’s own review of the materials filed, the merits of the two proposed appeal grounds I have mentioned, which are both very generally stated, appear to be lacking.  If there were to be an application to set aside this order dismissing the application, the question of the merits of the application would, no doubt, have to be addressed, and the Court would require to be appropriately satisfied that there were proper grounds to the proposed appeal. 

14. In all of those circumstances, I think the appropriate orders are:

    (1)The application be dismissed.

    (2)The applicant pay the first respondent’s costs, to be assessed if not agreed.

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

Associate:

Dated:        11 September 2018