SZVIN v Minister for Immigration & Border Protection

[2015] FCCA 1510

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVIN v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1510

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.13.03C, 44.12
Migration Act 1958 (Cth) ss.36, 65, 426A.

Applicant: SZVIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2942 of 2014

Judgment of: Judge Emmett

Hearing date: 3 June 2015

Date of Last Submission: 3 June 2015

Delivered at: Sydney

Delivered on: 3 June 2015

REPRESENTATION

No appearance by, or on behalf of, the Applicant

Solicitors for the Respondents: Ms Nicole Maddocks
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2942 of 2014

SZVIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 23 October 2014, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. On 5 March 2015, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence, and directed to file and serve written submissions in support of his application by 27 May 2015.

3. On that occasion, the matter was listed today at 9:30am for a hearing pursuant to r.44.12 of the Rules. A copy of that rule was given to the applicant.

4. It is now 10:36am and there has been no appearance by the applicant. The matter has been called outside the courtroom on at least two occasions, the most recently being less than five minutes ago.

5. There has been no communication received by this Court or by the first respondent from the applicant seeking an adjournment of today’s hearing or for any other reason.

6. Further, there has been no document filed by, or on behalf of, the applicant in accordance with the directions made by the Court on 5 March 2015, or otherwise.

7. In considering whether the application should be dismissed, I also have regard to the grounds contained in the applicant’s initiating application. Those grounds simply assert as follows:

   “1. The Refugee Review Tribunal (RRT) failed to provide the applicant (me) with the opportunity to comment on the information for my claims.

   2. The Refugee Review Tribunal (RRT) failed to carry out its statutory duty.”

8. The applicant filed an affidavit in support of his initiating application, annexing a copy of the RRT’s decision record. That decision record makes clear that the applicant was invited to attend a hearing before the RRT, however he did not attend that hearing. No further communication was received by the RRT from the applicant.

9. In the circumstances, the RRT proceeded to exercise its discretion under s.426A of the Migration Act 1958 (Cth) (“the Act”) to proceed to make its decision of review without taking any further action to enable the applicant to appear before it.

10. There is nothing on the face of the RRT’s decision record to suggest that that exercise of discretion by the RRT was other than proper.

11. The RRT went on to consider the applicant’s claims as they had been made. The RRT found that there was insufficient information to satisfy the RRT that the applicant was entitled to protection, either under s.36(2)(a) or s.36(2)(aa) of the Act.

12. Section 65 of the Act mandates that in the event that the decision maker, in this case the RRT, is not satisfied that the criteria for protection are met, then the applicant must be refused a protection visa.

13. There is nothing on the face of the RRT decision record to suggest otherwise than that the RRT’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.

14. In the circumstances, the application for judicial review does not raise an arguable case for the relief claimed and would be likely to be dismissed on that basis at a show cause hearing.

15. In all the circumstances, I am satisfied that the orders sought by the first respondent are appropriate.

16. Accordingly, the proceeding before this Court, commenced by way of application filed on 23 October 2014, is dismissed pursuant to r.13.03C(1)(c) of the Rules by reason of the failure of the applicant to appear at today’s scheduled hearing.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 7 July 2015