SZVDH v Minister for Immigration and Border Protection
[2015] FCAFC 102
•31 July 2015
FEDERAL COURT OF AUSTRALIA
SZVDH v Minister for Immigration and Border Protection [2015] FCAFC 102
Citation: SZVDH v Minister for Immigration and Border Protection [2015] FCAFC 102 Appeal from: SZVDH v Minister for Immigration & Anor [2015] FCCA 911 Parties: SZVDH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW TRIBUNAL) File number(s): NSD 481 of 2015 Judge(s): MANSFIELD, ROBERTSON AND GRIFFITHS JJ Date of judgment: 31 July 2015 Catchwords: MIGRATION – application for visa – review by Federal Circuit Court of Australia (‘FCCA’) – where FCCA set down the date of final hearing in advance of the call-over, without consulting the parties and at short notice – where FCCA denied adjournment of the final hearing – appeal allowed by consent Cases cited: Shrestha v Minister for Immigration and Border Protection [2015] FCAFC 87 Date of hearing: 31 July 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 4 Counsel for the Appellant: Ms T Baw Solicitor for the First Respondent: Ms B Markovic, Clayton Utz The second respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 481 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZVDH
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW TRIBUNAL)
Second Respondent
JUDGES:
MANSFIELD, ROBERTSON AND GRIFFITHS JJ
DATE OF ORDER:
31 JULY 2015
WHERE MADE:
SYDNEY
BY CONSENT
THE COURT ORDERS:
1.The appeal from the judgment and orders of the Federal Circuit Court of Australia, given on 10 April 2015, be allowed.
2.The orders made by the primary judge on 10 April 2015, including as to costs, be set aside.
3.The matter be remitted to the Federal Circuit Court of Australia, differently constituted, for determination of the claims for relief in the application filed in that Court on 23 September 2014.
4.The first respondent pay the appellant’s costs of these proceedings as agreed or assessed.
5.The name of the second respondent be amended to the Administrative Appeals Tribunal.
THE COURT NOTES:
The Federal Circuit Court Judge erred in the exercise of his discretion as to whether or not there should be a grant to the appellant of an adjournment of the final hearing on 10 April 2015, in circumstances where: the date of the final hearing had not yet been set down and was due to be set down at a call-over; the final hearing had then been set down without any consultation with the parties, on a date in advance of the date of the call-over and at short notice; the appellant’s legal representatives were not available on the date of the final hearing and the appellant’s legal representatives had communicated that fact to the chambers of the Federal Circuit Court Judge on the same date that they received notice of the final hearing date; and in circumstances where it could not be said that the denial of the adjournment did not affect the outcome of the proceedings.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 481 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZVDH
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW TRIBUNAL)
Second Respondent
JUDGES:
MANSFIELD, ROBERTSON AND GRIFFITHS JJ
DATE:
31 JULY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT
This appeal was listed to be heard today, together with SZTIM v Minister for Immigration and Border Protection NSD 318 of 2015.
On 21 July 2015, the parties provided to the Court proposed consent orders in the following terms:
The Court orders, by consent, that:
1.The appeal from the judgment and orders of the Federal Circuit Court, given on 10 April 2015, be allowed on the basis set out in the note set out below.
2.The orders made by the primary judge on 10 April 2015, including as to costs, be set aside.
3.The matter be remitted to the Federal Circuit Court of Australia, differently constituted, for determination of the claims for relief in the Application filed in that Court on 23 September 2014.
4.The first respondent pay the appellant’s costs of these proceedings as agreed, or assessed.
5.The name of the second respondent be amended to the Administrative Appeals Tribunal.
By consent, the Court notes that:
6.The Federal Circuit Court Judge erred in refusing to consider, or did not properly consider, the issue of whether there should be a grant to the appellant of an adjournment of the final hearing on 10 April 2015, in circumstances where: the date of the final hearing had not yet been set down and was due to be set down at a call-over; the final hearing had then been set down without any consultation with the parties, on a date in advance of the date of the call-over and at short notice; the appellant’s legal representatives were not available on the date of the final hearing and the appellant’s legal representatives had communicated that fact to the chambers of the Federal Circuit Court Judge on the same date that they received notice of the final hearing date; and in circumstances where it cannot be said that the denial of any adjournment did not affect the outcome of the proceedings.
Subject to modifying the wording at the beginning of sub-paragraph 2(6), the Court is satisfied that the proposed consent orders should be made having regard to the matters as outlined in the balance of that sub-paragraph and the principles which were approved and applied in the decision of the Full Court in Shrestha v Minister for Immigration and Border Protection [2015] FCAFC 87.
Orders will be made accordingly.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Robertson and Griffiths. Associate:
Dated: 31 July 2015