SZVIH v Minister for Immigration and Border Protection

[2016] FCA 642

FEDERAL COURT OF AUSTRALIA

SZVIH v Minister for Immigration and Border Protection [2016] FCA 642

Appeal from:	SZVIH & Ors v Minister for Immigration & Anor [2016] FCCA 268
File number:	NSD 307 of 2016
Judge:	PAGONE J
Date of judgment:	25 May 2016
Catchwords:	MIGRATION – Application for extension of time to file notice of appeal – No appearance by applicants at hearing – rule 36.75 – No prospects of successful appeal – Application dismissed.
Legislation:	Federal Circuit Court Rules 2001 (Cth) Federal Court of Australia Act 1975 (Cth) Federal Court Rules 2011 (Cth)
Date of hearing:	25 May 2016
Date of publication of reasons:	2 June 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	4
Counsel for the Applicants:	The applicants did not appear
Counsel for the Respondents:	Ms Saunders of DLA Piper

Table of Corrections
8 June 2016	In the appearances on the cover page, counsel for the applicants has been corrected.

ORDERS

NSD 307 of 2016

BETWEEN:

SZVIH

First Applicant

SZVII

Second Applicant

SZVIJ (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	PAGONE J
DATE OF ORDER:	25 MAY 2016

THE COURT ORDERS THAT:

1.The application be dismissed with costs.

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

REASONS FOR JUDGMENT
(Revised from transcript)

PAGONE J:

1. This is an application for an extension of time in which to bring an appeal from a decision of the Federal Circuit Court made on 5 February 2016 dismissing an application for judicial review of a decision made by the Refugee Review Tribunal on 18 September 2014. The application to the Federal Circuit Court had been dismissed pursuant to s 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). There has been no appearance today on behalf of the applicants and, accordingly, the Minister has sought that the matter be dismissed pursuant to r 36.75(1)(a)(ii) of the Federal Court Rules 2011 (Cth). That rule relevantly provides that the Court may make an order dismissing an appeal if the appellant is absent when the appeal is called on for hearing. The rule is satisfied in the present circumstances, and it is appropriate for an order to be made. The Court has power to dismiss the proceeding also pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). That section entitles a single judge sitting in chambers or in open Court, or a Full Court to make an order dismissing an appeal for the failure of the appellant to attend a hearing relating to the appeal.

2. The Minister has tendered in support of the application an affidavit of Ms Anna Davyskib dated 24 May 2016 which contained two annexures in support of proof of service of notification upon the applicants of the hearing today.  The annexures reveal that service has been effected by having sent details of today’s hearing to the applicants at their addresses for service which had been notified to the respondent and to the Court, being a post office box in Campsie, New South Wales, and a residential address in the suburb of Auburn in New South Wales.  There was also attached to the exhibits confirmation by electronic searches and tracking indicating that the articles had reached the destinations to which they had been sent.  There was also an annexure indicating that the notification of the hearing had been sent to the applicants by email at the email address which had been notified by the applicants.  In those circumstances, it is appropriate for me to make an order dismissing the proceeding.

3. I have had the benefit of reading the application for an extension of time together with the draft notice of appeal, the Minister’s outline of submissions in opposition to the application, the decision of the Federal Circuit Court of 5 February 2016, and the decision of the Refugee Tribunal of 18 September 2014.  Having read that material, I am confident that the applications were unlikely to succeed for the reasons substantially advanced by the Minister.  The grounds of appeal were stated to be:

   1.        Bias of the Honour, Judge of Federal Magistrate Court against the Applicant.

   2.Error of the Honour, Judge of Federal Magistrate Court, in failing to hear the evidence given by the applicant.

   There was no further particularisation of the grounds of appeal, and it was unlikely, in those circumstances, that grounds of the kind articulated could succeed.  It is plain to me from a reading of the decision of the Federal Circuit Court that neither bias nor error of the kind alleged could be established.  It is appropriate that the proceeding be dealt with pursuant to r 36.75, and I do so on that basis.  The Minister also seeks an order for the costs of the application, and there is no reason apparent why the usual order for costs ought not to be made.

4. Accordingly, the proceeding will be dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.

Associate: 

Dated:        2 June 2016

SCHEDULE OF PARTIES

NSD 307 of 2016
Applicants
Fourth Applicant:	SZVIK