SZVCK v Minister for Immigration and Border Protection
[2016] FCA 77
•10 February 2016
FEDERAL COURT OF AUSTRALIA
SZVCK v Minister for Immigration and Border Protection [2016] FCA 77
Appeal from: SZVCK v Minister for Immigration & Anor [2015] FCCA 2460 File number: NSD 1178 of 2015 Judge: ROBERTSON J Date of judgment: 10 February 2016 Legislation: Federal Court Rules 2011 (Cth) rr 35.12, 35.14, 35.33 Date of hearing: 10 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 15 Applicant The Applicant did not appear Solicitor for the First Respondent: Ms F Taah of Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent submitted save as to costs ORDERS
NSD 1178 of 2015 BETWEEN: SZVCK
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
10 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The application be dismissed pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).
2.The applicant pay the costs of the first respondent, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROBERTSON J:
Introduction
This is an application pursuant to rr 35.12 and 35.14 of the Federal Court Rules 2011 (Cth) for leave to appeal and an extension of time to seek leave to appeal from the judgment and orders of a judge of the Federal Circuit Court of Australia given and made on 8 September 2015.
By those orders the Federal Circuit Court, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), dismissed the proceeding commenced by way of application filed on 19 September 2014, with costs.
That application was for judicial review of the decision of the then Refugee Review Tribunal made on 25 July 2014 affirming the decision not to grant the applicant a Protection (Class XA) visa.
The application was filed on 1 October 2015.
When the application was called on for hearing at 2:15 pm today, the applicant was absent. I was told that an attempt had been made to contact the applicant by ringing her mobile phone number but that the call had been unanswered. I adjourned for 20 minutes in case the applicant had gone to the wrong courtroom. The matter was then called by the court officer both in the litigation pseudonym of the applicant and in her true name. There was no appearance by or on behalf of the applicant and, therefore, the applicant was absent when her application was called on for hearing.
I admitted into evidence, on the tender by the legal representative of the Minister, a letter dated 14 December 2015 from the Registry of the Court to the parties notifying them of the time, date, and place for the hearing of the application and drawing the attention of the parties to the potential consequences of non-attendance. I also admitted into evidence a letter dated 1 February 2016 to the applicant from the solicitors for the Minister enclosing a sealed copy of the Minister’s outline of submissions, reminding the applicant of the time, date, and place of the hearing, and drawing her attention to the potential consequences of non-attendance.
The applicant’s affidavit on the Court file, but not read in the applicant’s absence, refers to the applicant’s difficulties in finding a person to help her with the application document.
The draft notice of appeal annexed to that affidavit is as follows:
1.I came to Australia to seek protection visa because I helped my mother, sincere Christian, distribute copies of a document prepared by my mother’s sisters, Christians, which demanded to release of my aunt, who was also a Christian and had been detained because her gospel teaching. If I was forced to return to China, I will be surely persecuted by the China authorities.
2.The Tribunal member didn’t really know the cruel fact that the China authorities are continuing persecuting FAMILY CHURCH MEMBERS, therefore His decision of refusing my application for review of the decision of the Immigration & Border Protection is wrong, making jurisdictional error.
3.The Federal Circuit Court affirmed the decision of the Refugee Review Tribunal on 8th Sept. 2015.
In his written submissions, the Minister submitted that the extension of time to seek leave to appeal should be refused as the grounds sought to be raised were of insufficient merit to justify the extension of time being granted. Should an extension of time be granted, the applicant also required leave to file an appeal as the decision of the court below was interlocutory and the Minister also opposed leave being granted to the applicant and submitted that, in the event leave was granted, the appeal should be dismissed with costs.
Only the application for an extension of time and the application for leave to appeal was listed for hearing today.
It may save later time and expense if I give a provisional indication of my views, albeit in the absence of written or oral submissions on behalf of the applicant.
As to the application for leave to appeal, it was filed 9 days out of time. In my opinion what the applicant may have sought to put before the Court in her affidavit may have been a sufficient explanation for the delay.
However, again in the absence of submissions by the applicant, I presently see no arguable basis for the applicant’s proposed grounds of appeal. As matters appear to me at present, I would be minded to accept the submission on behalf of the Minister that none of the proposed grounds identify any appellable error in the decision of the Court below; neither do the grounds identify any jurisdictional error in the decision of the Tribunal; and, therefore, the judgment of the Federal Circuit Court is not attended with sufficient doubt to warrant the grant of leave.
I would, therefore, have been minded to grant the application for an extension of time but to dismiss the application for leave to appeal, with costs.
As it is, the applicant being absent when her applications under rr 35.12 and 35.14 were called on for hearing, I shall dismiss the application pursuant to r 35.33(1)(a)(i) of the Federal Court Rules. The applicant is to pay the costs of the first respondent, as agreed or taxed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 10 February 2016
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