SZUYZ v Minister for Immigration

[2015] FCCA 2156

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2156

Catchwords:
MIGRATION – Extension of time for show cause application – non appearance by the applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZUYZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2395 of 2014

Judgment of: Judge Driver

Hearing date: 11 August 2015

Delivered at: Sydney

Delivered on: 11 August 2015

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Mr Elliott of DLA Piper

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal.

2. The application for an extension of time is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

4. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2395 of 2014

SZUYZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application for an extension of time for a judicial review application to review a decision of the Refugee Review Tribunal (Tribunal), made on 15 April 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The matter came before me for first court date directions on 2 October 2014. At that time, I made orders by consent to prepare the matter for an interlocutory hearing on the question of the requested extension of time, noting that the application had been filed some months outside the time prescribed by s.477(1) of the Migration Act 1958 (Cth). Nothing further has been filed by or on behalf of the applicant.

3. When the matter was called this morning, there was no appearance by or on behalf of the applicant.  The matter has been called twice, and on each occasion there was no answer to the call.  Before I came on the bench, my associate attempted to contact the applicant on her nominated mobile telephone number.  That was unsuccessful.  The phone was switched off and a recorded message confirmed that.

4. I received the affidavit of Vanessa Sara Page made on 10 August 2015.  Ms Page deposes that she caused to be served on the applicant a copy of the Minister’s written submissions.  Annexed to the affidavit is a letter from the Minister’s solicitors to the applicant at her address for service, dated 29 July 2015, providing those submissions and reminding her of the importance of attending the hearing, and warning that if she did not attend the Minister might seek to have the matter dismissed with costs, on account of that non appearance.

5. In view of the non appearance of the applicant and the surrounding circumstances, the Minister seeks the dismissal of the application on account of her non appearance.  Strictly speaking, there is no judicial review application with which the Court can deal, given that it was filed out of time.  It would be only if an extension of time is granted that the Court’s jurisdiction to deal with the application would be enlivened.

6. In the circumstances, I have concluded that the appropriate course is to refuse the applicant’s request for an extension of time for the filing of her show cause application, by reason of her non appearance today.

7. I will order that the application for an extension of time is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

8. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

9. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  13 August 2015