SZVEK v Minister for Immigration and Border Protection

[2016] FCA 546

FEDERAL COURT OF AUSTRALIA

SZVEK v Minister for Immigration & Border Protection [2016] FCA 546

Appeal from:	Application for leave to appeal:  SZVEK v Minister for Immigration & Anor [2015] FCCA 3230
File number:	NSD 1643 of 2015
Judge:	KATZMANN J
Date of judgment:	16 May 2016
Legislation:	Federal Court of Australia Act 1976 (Cth) s 25(2B)
Date of hearing:	16 May 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	8
Counsel for the Applicant:	The Applicant did not appear
Solicitor for the First Respondent:	Mr B Wee of DLA Piper Australia
Solicitor for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

NSD 1643 of 2015

BETWEEN:

SZVEK

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	16 MAY 2016

THE COURT ORDERS THAT:

1.The application be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

2.The applicant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

1. The applicant is a disaffected applicant for a protection visa.  His application in the Federal Circuit Court was initially dismissed when he failed to appear at the hearing.  The primary judge declined to reinstate it because he was of the view that it had no reasonable prospects of success, nothing having been pleaded or put to the court to raise an arguable case of jurisdictional error on the part of the Tribunal. 

2. The application before this Court is an application for leave to appeal from the primary judge’s orders. It was listed for hearing today and called on at approximately 10.20am. The applicant did not appear. I then adjourned the court to give him an opportunity to come, in case his absence was temporary. I returned to court at approximately 10.45am, the matter was called outside the court a second time, and there was no appearance on this occasion either. At this point the Minister applied under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) for the application to be dismissed.

3. Where an application for leave to appeal has been filed and the applicant is absent when the application is called on for hearing, s 35.33(1)(a)(i) entitles a respondent to apply to the Court for an order that the application be dismissed. Section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), read with s 25(2BA) of the Act, gives the Court the power to make the order.

4. The power to make an order under s 25(2B) has been enlivened here and I am satisfied that there is no discretionary reason why it should not be exercised.

5. The Minister read an affidavit from a legal assistant in the employ of his solicitors which indicates that the applicant was on notice of the hearing date.  The affidavit attached copies of correspondence that had been sent to three addresses, being the three addresses appearing on various documents filed by the applicant in this Court.  In a letter dated 6 May 2016, the applicant was reminded that the matter was listed for hearing before me at 10.15am today and gave the court’s address.

6. In addition, the Minister tendered a letter from this court to the applicant dated 18 March 2016 which was admitted into evidence.  On the face of things, the letter was posted to the applicant’s home address and the post office box number that he had given in documents filed in the Court.  It, too, advised him of the listing for this matter before me today.

7. Consequently, there is every reason to believe that the applicant was on notice of the hearing. He has offered no explanation for his absence. Accordingly, the power conferred by s 25(2B) should be exercised and the application dismissed.

8. The applicant should pay the first respondent’s costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate: 

Dated:        17 May 2016