BGK15 v Minister for Immigration and Border Protection

The application for extension of time 12 The applicant represented himself in this Court and was assisted by an Arabic interpreter. 13 The applicant deposed in his affidavit that, in circumstances where he had not notified the FCCA of his new address, he only received a copy of the primary judge's reasons for judgment on 18 December 2017, but he believed that he had an arguable case. 14 The draft notice of appeal contains the following three proposed grounds of appeal (without alteration): (a) At the time of my application to waive 8503 condition I provided medical evidence within 7 days yet the Department failed to act on it and decided that my request is not compelling and refused to waive 8503 condition. (b) His Honour also failed to accept the grounds of my application even though he gave me the opportunity to talk about it. (c) I do not agree with the judgment of His Honour because the evidence I provided represents different circumstances and the Department failed to act on it. 15 Many of the applicant's oral submissions were directed to the merits of his case. He was unable to identify any arguable error in the primary judge's reasons for judgment despite being repeatedly invited by the Court to do so. He complained that the delegate had failed to take into account the fact that he feared persecution if he were returned to Egypt. It was pointed out to him that while he had made such a claim in his first waiver request he did not repeat that claim in the second waiver request and it is the delegate's decision in respect of the latter which is the subject of this proceeding. It is a matter for the applicant to determine whether or not he wishes to make an appropriate application to the Department if he considers that circumstances have changed since his first protection visa application was refused and he is at risk of persecution or, alternatively, that that risk is relevant to any further request to waive the condition.

Consideration and disposition of the application 16 Considerations relevant to the exercise of the Court's discretion to extend time include, but are not limited to, whether the Court is satisfied that there is an acceptable explanation for the delay, whether there would be any undue prejudice to the respondent if the Court were to grant an extension of time, and whether there is any merit in the proposed appeal (see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; AOT15 v Minister for Immigration and Border Protection [2016] FCA 1085 and BBW15 v Minister for Immigration and Border Protection [2016] FCA 128). 17 I am prepared to accept that the applicant has provided an acceptable explanation for the delay in making this application. In doing so, I take into account that the applicant is a litigant in person. The Minister did not claim that he would suffer any undue prejudice if an extension of time were granted. 18 The difficulty, however, with the application for an extension of time is the absence of merit in the proposed appeal. In substance, the proposed grounds of appeal reflect the three grounds of judicial review which were unsuccessful below. There is no arguable error on the part of the primary judge raised by any of the three proposed grounds of appeal. 19 The first proposed ground effectively consolidates the three judicial review grounds run unsuccessfully below. No arguable appealable error has been demonstrated in relation to the primary judge's reasons for rejecting each of those grounds, as summarised in [9] to [11] above. Indeed, I consider that his Honour's reasoning is correct. 20 The first proposed ground is misconceived if it relates to matters which occurred in relation to the applicant's first waiver request, which was not the subject of his judicial review proceeding below, and so, in those circumstances, it cannot be the subject of the proposed appeal. It is evident from the Department's decision record dated 3 August 2016 that the second waiver request was rejected on the basis that the decision-maker was not satisfied that the circumstances described in the second request were substantially different from those previously considered. The decision-maker acknowledged that the applicant had provided a list of medications and conditions that affected his partner, but she was not satisfied that this additional information "represents substantially different circumstances". That finding was reasonably open on the evidence. 21 The second proposed ground of appeal amounts to nothing more than a complaint that the primary judge failed to uphold the applicant's judicial review case. No arguable appealable error has been identified in relation to the primary judge's reasons for judgment. 22 The same may be said in respect of the third proposed ground of appeal. On one view, it simply amounts to a statement of dissatisfaction with the outcome of the FCCA proceeding. To the extent that this proposed ground challenges the primary judge's reasoning in respect of judicial review ground 3, no appealable error is disclosed. Whether or not the circumstances relating to the second waiver request were substantially different from those considered by the previous delegate involved the second delegate making a finding of fact. While there is some scope for judicial review of findings of fact, they are relatively limited, save in the case of jurisdictional facts (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 70 AAR 413 at [37] and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 154 ALD 221 at [83] and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [132] per Crennan and Bell JJ). The applicant has failed to demonstrate that any of these authorities arguably apply here.

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Judgment (3 paragraphs)

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Legislation Cited (2)

Cases Cited (7)