SZUXV v Minister for Immigration and Border Protection

1. The application for an extension of time and leave to appeal be dismissed.
2. The applicant pay the first respondent's costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 The history of the applicant's proceedings before the Federal Circuit Court, identified below, explains why her current application for an extension of time and leave to appeal must be rejected. 2 The applicant applied for a protection visa on 22 July 2013 claiming that she feared persecution in her country of citizenship, Nepal, on multiple grounds. 3 A delegate of the first respondent refused her application and she applied for review of that decision by the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed the decision of the delegate refusing the applicant a protection visa on 15 July 2014. In short, the Tribunal found the applicant to be an unreliable witness and thus rejected her claims. 4 The applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. The applicant did not attend the hearing and the Court dismissed her application in her absence on 2 June 2015, giving reasons for doing so in SZUXV v Minister for Immigration and Border Protection [2015] FCCA 1484. 5 On 29 June 2015, the applicant applied to set aside these orders made in her absence but again failed to appear at the hearing of this application on 11 September 2015. Because there had been an error in notification of the hearing by the Registry, the application was not dismissed but adjourned to 9 October 2015, the applicant being notified of the new hearing date. On 8 October 2015, the applicant filed a document in the Federal Circuit Court Registry stating that she discontinued her case and would not be appearing at the hearing on 9 October 2015. Consistent with that notice, the applicant did not appear on 9 October 2015. The Federal Circuit Court dismissed her application. 6 On 30 March 2016, the applicant filed yet another application in the Federal Circuit Court seeking to set aside the dismissal of her proceeding. Her affidavit in support says that she was depressed and prevented from attending the hearing on 9 October 2015 because she was scared she would be sent back to Nepal. This further application was heard and dismissed by the Federal Circuit Court on 22 June 2016, the applicant having appeared at that hearing. The Federal Circuit Court gave reasons for the dismissal in SZUXV v Minister for Immigration and Border Protection (No 2) [2016] FCCA 1556 (SZUXV No 2). 7 On 11 July 2016, outside the 14 day time limit to seek leave to appeal against an interlocutory order, the applicant filed in this court the current application for an extension of time and leave to appeal. 8 If the application had any merit an extension of time ought to be granted because, as is common, the applicant was unaware of the 14 day time requirement, the delay was not long, and the first respondent is not prejudiced. The application for leave to appeal, however, is without merit. The primary judge explained in SZUXV No 2 that, given the applicant had discontinued the proceeding, the application should be treated as one to set aside the discontinuance. The primary judge considered the authorities relevant to the setting aside of a discontinuance including SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137, Kansra v Minister for Immigration and Border Protection [2014] FCCA 2726 and MZZDN v Minister for Immigration and Border Protection [2015] FCCA 69, which treated the issue as one involving a discretion for the court involving a number of relevant considerations to determine where the interests of justice lie, and the more recent decision of Chen v Monash University [2016] FCAFC 66 (Chen), applied in BZAGD v Minister for Immigration and Border Protection [2016] FCA 670, which confined the discretion to cases in which the setting aside of the discontinuance is necessary to prevent an abuse of process or to protect the integrity of the process. While (correctly) adopting the approach in Chen, the primary judge nevertheless concluded that on either approach the application must fail. Setting aside the discontinuance was not necessary to prevent an abuse of process or protect the integrity of the process, nor was it in the interests of justice more broadly to do so given that the applicant had knowingly and voluntarily filed the discontinuance, had waited for more than six months before trying to set the discontinuance aside, and had given no explanation for this delay. Insofar as the applicant had relied on her mental state, the primary judge said at [26] that there was no evidence that the applicant's judgment was impaired or that she did not understand the effect of the discontinuance at the time of filing. The primary judge also noted at [29] that he agreed with the submissions for the first respondent that the proposed ground of review of the Tribunal's decision also would not have reasonable prospects of success. 9 I agree with the reasoning of the primary judge. Whatever way in which the application is assessed it lacked any merit. The primary judge was right to conclude that the application should be dismissed in the circumstances described above. It follows that the application for an extension of time and leave to appeal also lacks any merit and must be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.