SZUVA v Minister for Immigration and Border Protection
[2017] FCA 482
•8 May 2017
FEDERAL COURT OF AUSTRALIA
SZUVA v Minister for Immigration and Border Protection [2017] FCA 482
Appeal from: Application for leave to appeal: SZUVA v Minister for Immigration & Anor [2016] FCCA 3248 File number: VID 1374 of 2016 Judge: PAGONE J Date of judgment: 8 May 2017 Date of publication of reasons: 17 May 2017 Catchwords: MIGRATION – application for leave to appeal – failure to appear by applicant – failure to provide sufficient reasons for non-appearance – failure to provide adequate supporting material for non-appearance - no error sufficient to warrant the grant of leave Legislation: Federal Court of Australia Act 1976 (Cth) Cases cited: Decor Corporation v Dart Industries (1991) 33 FCR 393 Date of hearing: 8 May 2017 Date of last submissions: 10 May 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 6 Counsel for the Applicant: The applicant did not appear Counsel for the First Respondent: Mr C Tran Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent submits save as to costs ORDERS
VID 1374 of 2016 BETWEEN: SZUVA
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
10 MAY 2017
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)PAGONE J:
This matter comes to the Court as an application for leave to appeal a judgment of the Federal Circuit Court given on 11 November 2016 refusing to reinstate an application to review a decision of the Administrative Appeals Tribunal although it is not clear whether leave was required. The application to the Federal Circuit court to review the decision of the Tribunal was dismissed by the Federal Circuit Court on the basis that the applicant had failed to appear at the scheduled hearing. The application to this Court was made on 25 November 2016 for leave to appeal from the judgment of the Federal Circuit Court.
Section 24(1A) of the Federal Court of Australia Act1976 (Cth) provides that an appeal should not be brought from an interlocutory judgment unless the Court or a judge gives leave to appeal. The application before the Court was for leave to appeal on the assumption that the decision of the Federal Circuit Court was interlocutory and required the Court’s leave. In any event the applicant did not appear when the matter was called and the Minister sought to have the matter dismissed on the basis of the applicant’s absence.
In the circumstances, it would seem that whether the application was one for leave or whether it was an application that could have been made without leave being given, the respondent might be entitled to have the matter dismissed because of the failure by the applicant to appear. The Court was informed by Mr Young, who appeared for the respondent, that the applicant had sent a fax both to the Registrar of this Court and to Mr Young in which he says:
I am suffering from kidney stones and taking treatment. I am unable to attend the court hearing today. I request the hearing may please be postponed.
Other than that fax, there was no formal application for an adjournment and no material beyond that fax and the statements in that fax in support of an adjournment. The application for an adjournment in that form is insufficient for an adjournment to be granted, and the material upon which it is sought is also insufficient for an adjournment to be granted. There is insufficient material before the Court to justify a conclusion that the applicant was not able to attend the hearing for the purposes of the application.
In those circumstances, the respondent sought orders for the matter to be dismissed because of the applicant’s failure to appear. Section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) permits the Court to dismiss an appeal where there has been a failure of the applicant to attend the hearing relating to an appeal. There are several rules of the Court which similarly provide for the Court to dismiss an application where there has been a failure by an applicant to appear. Rule 30.21 enables the Court to dismiss a proceeding in the absence of a party when the matter is called on for trial. This application was made under r 35.12, and r 35.33 enables the Court to dismiss an application made under r 35.12 when a matter is called and the party is absent. Rule 36.75 also enables the Court to dismiss an appeal where the appeal is called on and the appellant is absent. The matter was called, the appellant was also called, and there was no appearance. In those circumstances I will dismiss the application.
In doing so, I should add that I have had the benefit of reviewing the material relied upon in the application for leave to appeal, and having done so, have formed the view that there was insufficient doubt about the decision below to warrant it being reconsidered by the Court and that there would be no substantial injustice resulting if leave were refused, supposing the decision to be wrong: see Decor Corporation v Dart Industries (1991) 33 FCR 393. The applicant filed an application listing three grounds for leave to appeal and accompanied that with an affidavit. In my view, none of the grounds of appeal, nor any of the matters in the affidavit, reveal any error sufficient to warrant the grant of leave.
Accordingly, the application for leave to appeal will be dismissed.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 17 May 2017
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