BAC16 v Minister for Immigration and Border Protection

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 This is an application for an extension of time and leave to appeal from orders made by the Federal Circuit Court on 16 December 2016. Rule 36.03 of the Federal Court Rules 2011 (Cth) required a notice of appeal to be filed within 21 days after the date on which judgment was pronounced or orders were made by the Federal Circuit Court. The judgment and orders were made on 16 December 2016 and any appeal ought to have been filed by 6 January 2017. The application for extension of time was filed 45 days after that date, namely, on 20 February 2017. It was supported by a draft notice of appeal and a brief affidavit. At the hearing, the applicant represented himself but was assisted by an interpreter. At the hearing, the applicant said that he needed time to get further assistance, which is essentially what he had said in his affidavit. 2 The Court may grant an extension of time within which an appeal may be commenced but must be satisfied that it is in the interests of justice to order an extension of time within which to make the application. An application for extension of time must provide an adequate explanation for the delay and must have sufficient merits to justify the granting of an extension: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, [19]; Parker v The Queen [2002] FCAFC 133, [6]. 3 The applicant's explanation for the delay appears in part to be due to his inability to obtain legal advice, and assistance from the Court, after receiving the decision by the Federal Circuit Court on 16 December 2016. The applicant's affidavit acknowledges that he realised that his application had been dismissed after the Federal Circuit Court had made the orders on 16 December 2016 but the applicant said that he was not able to obtain assistance because law offices and the Court were not functioning due to the Christmas holidays. The applicant, however, gave no details of any steps undertaken during that period of time nor did he give any details of any such attempt to obtain assistance having been unsuccessful during that period of time. It can, in other words, be accepted that there may be some delay occasioned by the Christmas vacation but there is no evidence of any attempt by the applicant during that period to make contact with anyone and of any failure of any such attempt. At the hearing of his application for an extension of time, there was again no evidence of any attempt and of any failure. His explanation, to that extent and in those circumstances, is therefore unacceptable. 4 The Minister concedes that there is no prejudice to the granting of an extension of time in the present case but contends that, in any event, an extension should not be granted because the proposed appeal lacks sufficient merit to warrant the grant of an extension. The grounds in the application for an extension of time are identified simply as those set out in the accompanying affidavit. The affidavit contains only the reference to the reasons for the delay. The draft notice of appeal identifies no error. The grounds of appeal in the draft notice are stated broadly in the following terms: 1. The proceeding in the order which the application relates was pronounced involves a question of law. 2. There is a jurisdictional error occurs in the order. The first ground asserts, but does not identify, a question of law. The second ground asserts, but does not identify, a jurisdictional error. Neither of the grounds as stated reveal any merit that would justify granting the extension. Nothing said at the hearing of the application orally changes that conclusion. 5 A consideration of the decision by the learned judge similarly discloses no error to justify an extension. The grounds for judicial review before his Honour were expressed also in broad terms with no particularity. The grounds for judicial review before his Honour were stated as follows: 1. The interest of the Applicants is affected by the decision given by the Second Respondent on 30 March 2016. 2. That the Second Respondent failed/ignored to consider Section 424A(1) of the Migration Act 1958. 3. The Second Respondent acted without or inexcess of jurisdiction and/or identified wrong issues, asked wrong questions, relied on irrelevant material or ignored relevant material. 4. The Applicant was denied procedural fairness. 5. The Second Respondent failed to review and consider the Application for protection as per the Migration Act. His Honour noted at [6] that the grounds appeared to have been drawn by a legal aid lawyer to assist the applicant to file an application but that the applicant had not been able to identify any specific circumstances of his case that came within the grounds. In dismissing the application his Honour said: 6. It appears that these are general grounds that were drawn by a legal aid lawyer to assist the applicant to file his application. The applicant was not able to identify any specific circumstances of his case that came within these grounds. 7. In the applicant's supporting affidavit, he set out two further matters that may have indicated a ground for review. They are as follows: 13. The Tribunal did not take in account the current country situations in relation to my claims. People deported to Sri Lanka are brutally assaulted and imprisoned by the authorities for illegally fleeing the country. I fear such treatment. ... 15. The Tribunal also failed to consider whether it was reasonably practicable to relocate considering my situation, 8. At the hearing before me, the applicant was not able to identify any particular piece of information that the Tribunal did not have regard to. The applicant said that he was fearful of returning to Sri Lanka. It appears that this paragraph is seeking merits review rather than judicial review. The claim in paragraph [15] is that the Tribunal failed to consider whether or not he could relocate. As the Tribunal considered that there was not a real risk that he would face significant harm, there was no need for the Tribunal to consider whether or not he could relocate to avoid that harm. 9. The applicant raised today a complaint that he thought his hearing before the Tribunal was very quick. There is no transcript or tape recording of the hearing in evidence. From reading the Tribunal's reasons, it seems clear that there must have been considerable discussion at the hearing. The Tribunal outlines what occurred at the hearing at paragraphs [31] to [50] of their decision. 10. In the circumstances, I am not persuaded that the applicant has shown a ground for judicial review. There is no error evident in his Honour's reasons or decision to justify the grant of an extension. 6 Accordingly, the application will be dismissed with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.