SZUXR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 367

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 367   

File number(s):	SYG 2907 of 2019
Judgment of:	JUDGE STREET
Date of judgment:	1 February 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – where the Tribunal found it did not have jurisdiction to review a decision of a delegate of the first respondent – where grounds of application had no reasonable prospects of success – no jurisdictional error made out – application summarily dismissed.
Legislation:	Federal Circuit Court Rules 2001 (Cth), r. 13.10
Number of paragraphs:	12
Date of hearing:	1 February 2021
Place:	Sydney
Counsel for the Applicant:	In person
Solicitor for the First Respondent:	Mr L Dennis, MinterEllison

ORDERS

SYG 2907 of 2019

BETWEEN:

SZUXR

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	1 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The oral application for an adjournment is dismissed.

2.Order 1 made by Judge Dowdy on 9 November 2020 is varied to fix the matter for a summary dismissal hearing.

3.The application is dismissed under r 13.10 of the Federal Circuit Court Rules 2001 (Cth).

4.The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for summary dismissal of an application filed seeking to allege jurisdictional error in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 October 2019 holding that the Tribunal did not have jurisdiction in respect of the application for review of a decision of a delegate of the first respondent (“the Delegate”). 

2. The Delegate found that the applicant had already made a Protection visa application and that the further application was invalid. 

3. The Tribunal wrote to the applicant, putting the applicant on notice that there was not a reviewable decision under Part 7 of the Migration Act 1958 (Cth) (“the Act”) engaging the Tribunal's jurisdiction. The Tribunal found that the application for review did not relate to a reviewable decision and that it had no jurisdiction. The Tribunal was correct to do so. 

   BEFORE THE COURT

4. These proceedings were commenced on 8 November 2019 and none of the grounds identify any basis upon which relevant error could be found in the Tribunal's decision. 

5. The application should have been the subject of an earlier application for summary dismissal.  In the Minister's submissions dated 14 December 2020, the Minister did ask for the matter to be summarily dismissed. 

6. On 9 November 2020, Judge Dowdy fixed the matter for hearing today as a final hearing. 

7. The applicant provided a medical certificate today and sought orally an adjournment. The medical certificate simply identified that the applicant was unfit for work. The applicant was clearly able to identify his date of birth without any difficulty and the Court is satisfied that the applicant could meaningfully participate insofar as he wished in the hearing. The Court gave the applicant a reasonable opportunity to meaningfully participate in the proceedings. The Court did not accept that the applicant's coughing prevented him from meaningfully participating if he chose to do so. The Court also took into account that the application to this Court is hopeless and has no reasonable prospect of success. The adjournment was opposed by the first respondent. 

8. It is for these reasons that the Court made an order dismissing the oral application for an adjournment as the Court was satisfied the adjournment was not warranted in the interests of the administration of justice, and was satisfied that the applicant could meaningfully participate if he chose to do so. 

9. The applicant's further conduct in the proceedings involved the applicant engaging in affected coughing that the Court is satisfied was not a genuine reflection of the applicant's illness but was rather a determined effort by the applicant to prevent his hopeless application being dealt with. 

10. The applicant put no oral submissions that identified any argument in support of why grounds 1 to 7 identify an arguable case of relevant error. 

11. In the evidence before the Court, it was clear that the applicant had made an earlier application for a Protection visa and that the Delegate had no jurisdiction in respect of the application, being the applicant's second application for a Protection visa. No arguable case for the relief identified has been made out. 

12. The Court is satisfied that the proceedings have no reasonable prospect of success within the meaning of r 13.10 of the Federal Circuit Court Rules2001 (Cth) (“the Rules”). Accordingly, the Court is satisfied that this is an appropriate matter in which to exercise the Court's powers under r 13.10 of the Rules. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 1 February 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 18 March 2021