SZVDH v Minister for Immigration and Border Protection [2015] FCAFC 102

FEDERAL COURT OF AUSTRALIA

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

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE 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

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE 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

1 This appeal was listed to be heard today, together with SZTIM v Minister for Immigration and Border Protection NSD 318 of 2015.

2 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.

3 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.

4 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

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