SZVEB v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an application for leave to appeal a judgment of Judge Cameron of the Federal Circuit Court of Australia delivered on 27 March 2015: see SZVEB v Minister for Immigration and Border Protection [2015] FCCA 956 ("SZVEB"). 2 The applicant is a male citizen of Pakistan. He arrived in Australia on 29 May 2012. On 30 September 2013, he lodged an application for a Protection (Class XA) visa. On 26 February 2014, a delegate of the Minister refused to grant the visa. The applicant sought review of the delegate's decision in the Refugee Review Tribunal on 19 March 2014. The Tribunal affirmed the delegate's decision on 3 September 2014. 3 The applicant applied for judicial review of the Tribunal's decision by an application filed in the Federal Circuit Court on 26 September 2014. The application was listed for its first court date on 28 October 2014. The applicant appeared in person. The matter was listed for a call-over on 29 January 2015. The applicant did not appear at the call-over. On the application of the Minister, the proceedings were dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth): see SZVEB v Minister for Immigration and Border Protection (No 2) [2015] FCCA 1145. 4 The applicant filed an application in a case on 2 March 2015 seeking an order reinstating his application. The supporting affidavit stated that the applicant was unable to attend the hearing on 29 January 2015 due to his severe depression. The primary judge dismissed the application in a case because, although the primary judge accepted that the applicant had a satisfactory explanation for failing to attend the call-over, the substantive application sought to be made did not have reasonable prospects of success: SZVEB at [19]. 5 The matter was listed for hearing today at 2:15 pm in courtroom 21A. There was no appearance by the applicant at that time. The letter sent to the applicant regarding today's hearing indicated that the matter would be heard in courtroom 21B. I asked the court officer to call the matter outside the courtroom, and to see whether the applicant was present at courtroom 21B. The applicant was neither outside the courtroom nor in courtroom 21B. I decided to adjourn the matter until 2:45 pm. I asked the Minister's representative to attempt contacting the applicant by telephone in the meantime with the assistance of the interpreter who was present at the hearing. 6 My chambers were informed that Mr Sher Afzal Khan, the Chief Executive Officer of the Australian Multicultural Charity, would attend at the court momentarily. An affidavit of the applicant filed on 7 April 2015 indicates that Mr Khan (who is not a lawyer) was present with the applicant at the Federal Circuit Court hearing on 27 March 2015. Upon resuming at 2:45 pm, Mr Khan advised the Court that although the applicant resides at the Charity's premises, he is often not there for periods of days and appears to be mentally unwell. He had spoken to the applicant on several occasions in the past week and reminded him about the hearing today and he had expected that the applicant would appear. 7 The Minister's representative made an application to have the matter dismissed pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2001 (Cth) for the applicant's non-appearance. The Minister also made an application to amend the name of the second respondent to "Administrative Appeals Tribunal" and for the applicant to pay the first respondent's costs. 8 I noted that Mr Khan, whose place for work is the address for service for the applicant, has advised the Court that the applicant was given notice of the hearing today. Nonetheless, the applicant did not appear today. I noted that the applicant did not attend the interview with the delegate, did not appear at a hearing before the Tribunal, and did appear once in the Federal Circuit Court but not at the call-over. 9 This is a matter where, had the Minister made an application under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) I would have been inclined to grant the application. However, the Minister instead elected to seek to have the application dismissed under r 35.33(1)(a)(i) of the Federal Court Rules. I acceded to that application and made an order dismissing the applicant's application under that rule. I note that as a result, it is open to the applicant to apply to the Court under r 35.33(2) to set aside or vary the order should he elect to do so. 10 I also made orders changing the name of the second respondent to "Administrative Appeals Tribunal" and requiring the applicant to pay the Minister's costs as agreed or taxed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.