SZWCW v Minister for Immigration and Border Protection

[2015] FCA 1217

FEDERAL COURT OF AUSTRALIA

SZWCW v Minister for Immigration and Border Protection [2015] FCA 1217

Citation:

SZWCW v Minister for Immigration and Border Protection [2015] FCA 1217

Appeal from:

SZWCW v Minister for Immigration & Anor [2015] FCCA 596

Parties:

SZWCW v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW TRIBUNAL)

File number(s):

NSD 270 of 2015

Judge(s):

GRIFFITHS J

Date of judgment:

10 November  2015

Catchwords:

MIGRATION – where the Federal Circuit Court of Australia (‘FCCA’) summarily dismissed the proceeding without notice to the applicant – where the first respondent accepts the FCCA erred – where the applicant has not responded to proposed consent orders which involved the appeal being allowed and the matter remitted to the FCCA

Cases cited:

Shrestha v Migration Review Tribunal [2015] FCAFC 87

SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88

Date of hearing:

10 November 2015

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

7

Counsel for the Applicant:

The applicant did not appear

Solicitor for the First Respondent:

R Jones, Australian Government Solicitor

Counsel for the Second Respondent:

The second respondent submitted to any order the Court might make in the proceeding

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 270 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZWCW
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW TRIBUNAL)
Second Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	10 NOVEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the second respondent be changed to Administrative Appeals Tribunal.

2.The applicant be granted leave to appeal from the judgment and orders of the Federal Circuit Court of Australia, delivered on 12 March 2015. 

3.The appeal be allowed. 

4.The orders made by the primary judge on 12 March 2015, including as to costs, be set aside. 

5.The matter be remitted to the Federal Circuit Court of Australia, differently constituted, for determination of the applicant’s application filed in that Court on 17 February 2015. 

6.The first respondent pay the applicant’s costs of this proceeding (including the application for leave to appeal and the appeal) as agreed or assessed. 

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 270 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZWCW
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW TRIBUNAL)
Second Respondent

JUDGE:	GRIFFITHS J
DATE:	10 NOVEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 13 March 2015 the applicant filed an application for leave to appeal against a judgment of Judge Street in the Federal Circuit Court of Australia (the FCCA) delivered on 12 March 2015.  The application was accompanied by an affidavit sworn by the applicant on the same day. 

2. On 17 August 2015, the Minister’s solicitors wrote to the applicant inviting her to consider and sign consent orders which would have the effect of granting her application for leave to appeal, allowing her appeal and having the matter remitted to the FCCA, differently constituted, for determination of her claim for relief, as well as having the Minister pay her costs.  No reply was received to that correspondence. 

3. On both 13 October 2015 and 14 October 2015, the Court Registry wrote to the applicant and notified her that she needed to attend a directions hearing scheduled for 20 October 2015 if she was unwilling to sign the proposed consent orders.  No response was received to either of those letters and the applicant failed to attend the directions hearing on 20 October 2015. 

4. When the matter was called for hearing this morning, there was no appearance by the applicant. 

5. The Minister accepts that the primary judge erred in summarily dismissing the proceedings of his own motion at the first Court date and without notice to the applicant, having regard to the Full Court’s decisions in Shrestha v Migration Review Tribunal [2015] FCAFC 87 and SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88 and that to do so was procedurally unfair. That concession was properly made.

6. I am satisfied that the orders proposed by the Minister are appropriate. 

7. Orders will be made accordingly. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:        10 November 2015