FEDERAL COURT OF AUSTRALIA

SZUNV v Minister for Immigration and Border Protection [2015] FCA 917

THE COURT ORDERS THAT:

1.    The application for leave to appeal 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)

1    The applicant is a citizen of Sri Lanka who arrived in Australia in July 2012. He subsequently applied for a protection visa in December 2012 and that application was refused on 5 July 2013 by a delegate of the Minister. On 10 July 2013, the applicant filed an application to review the delegate’s decision before what was then the Refugee Review Tribunal (‘the Tribunal’). It conducted a hearing on 13 May 2014 and, on 27 May 2014, it determined to affirm the delegate’s decision to refuse the applicant a protection visa.

2    For reasons which will become apparent, it is not necessary to set out the basis upon which the application for a protection visa had been made. After the Tribunal affirmed the delegate’s decision, the applicant filed an application for judicial review of that decision in the Federal Circuit Court. He subsequently filed further amendments which resulted in a further amended application dated 14 January 2015.

3    The matter was called on for hearing in the Federal Circuit Court on 12 March 2015. At that time the applicant, so he informed me today, was delayed by a late train and he had the misfortune to arrive five minutes after the appointed time for the hearing of the case. The Federal Circuit Court is empowered by r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application if, when the matter is heard, an applicant is absent. Since the applicant was not present, Judge Smith determined to exercise that power and dismissed the proceeding, explicitly invoking that rule in the orders which were made.

4    At that point, the applicant was confronted with two procedural possibilities. First, he could apply under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) to vary or set aside the order made on 12 March 2015 on the basis that it had been made in his absence. Secondly, he could apply to this Court for leave to appeal from the orders made by Judge Smith. It was the latter course which the applicant adopted. In a sense, this was a difficult path to pursue, because this Court’s jurisdiction to intervene is delimited by the necessity that there should be demonstrated an error on the part of the first instance judge.

5    Since the applicant had been absent, it seems to me it will be very difficult, if not impossible, to establish that his Honour erred in dismissing the proceeding pursuant to r 13.03C(1)(c). The alternative course of applying to the Federal Circuit Court under its own rules to set aside its orders would have had the merit that it would have permitted the applicant to put before that Court his explanation for why it was that he was late.

6    No doubt in making an application of that kind, the relevant considerations for the Federal Circuit Court would include the explanation proffered here for the applicant’s absence, viz. a delay caused by a late train, as well as the underlying merits of his application. I do not say that this is an exhaustive statement of the matters which would be relevant to the disposition of such an application, but it is certainly indicative.

7    In the circumstances, it seems to me that there are no prospects of an appeal from Judge Smith’s decision being successful. The application before me is one for leave to appeal and it follows from what I have just said that that application should be dismissed with costs.

8    That does not leave the applicant without a remedy. If he wishes to pursue his complaints about the manner in which the Tribunal dealt with his application, he will need to apply in the Federal Circuit Court under r 16.05(2)(a) by way of an application in the same proceeding in which Judge Smith’s orders were made. In that application, it will be necessary for the applicant to demonstrate some explanation for the delay in bringing the application, which will no doubt include, in part, the fact that he filed the proceeding in this Court. He will also need to address the merits of his case. Beyond that, it is not appropriate that I say anything. I should say for completeness that I raised these issues with the applicant during the hearing and they had been raised by the Minister’s solicitors in correspondence. I do not think that anything necessarily turns on that for present purposes.

9    In those circumstances, I will order that the application for leave to appeal be dismissed with costs.

Associate:

Dated:    24 August 2015