BLJ16 v Minister for Immigration and Border Protection

1. The applicant's application dated 27 March 2018 be dismissed.
2. The applicant pay the first respondent's costs, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MOSHINSKY J 1 The applicant, who is a citizen of India, seeks reinstatement of this proceeding. The background to this application is as follows. The underlying proceeding in this Court is an application by the applicant for an extension of time in which to appeal from orders of the Federal Circuit Court of Australia. The application for extension of time was listed for hearing on 27 February 2018. On that occasion, the applicant did not appear. I adjourned the hearing until 1 March 2018. In the meantime, my Associate sent an email to the applicant (to each available email address) notifying him of the new hearing date. On 1 March 2018, the applicant again did not appear. On that occasion, I made an order, pursuant to s 25 of the Federal Court of Australia Act 1976 (Cth), dismissing the application. I also made an order that the applicant pay the first respondent's costs. 2 By interlocutory application dated 27 March 2018, the applicant applies for an order that the 1 March 2018 orders be set aside (and certain ancillary orders). This is essentially an application to reinstate the proceeding. The Court has power to reinstate the proceeding pursuant to s 25(2B)(bc) of the Federal Court of Australia Act. The principles applicable to an application for reinstatement were discussed by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. The discretion to reinstate requires consideration of three factors and whether, on balance, they tend for or against the reinstatement. Those factors are: (a) whether there was a reasonable excuse for the party's absence from the hearing in which the proceeding was struck out; (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the Court is empowered to grant; and (c) whether the applicant has a reasonably arguable prospect of success on the substantive application. 3 I will consider each of these factors in turn. 4 The first factor is whether there is a reasonable excuse for the party's absence from the hearing. The applicant has provided an affidavit in which he deposes that he could not attend the hearing because of a severe cold and flu caused by viruses. He also states that he used over-the-counter cold medication. No medical evidence or further detail has been provided. I doubt that this material is sufficient, but it is not necessary to decide the current application on this basis. 5 The second factor concerns prejudice. It is not apparent that the first respondent would suffer any prejudice. 6 The third factor is whether the applicant has a reasonably arguable prospect of success on the substantive application (that is, his application for an extension of time in which to appeal). The reasons of the Federal Circuit Court are: BLJ16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 2278 (the Reasons). I note the following matters: (a) The applicant has not provided a draft notice of appeal. (b) The applicant has not identified any grounds of appeal. (c) When asked during the hearing today whether he could identify any error in the judgment of the Federal Circuit Court, the applicant was unable to do so. 7 In light of the above, it is difficult to see how the applicant's application for an extension of time has any reasonably arguable prospect of success. I note that the application for an extension of time was filed only a short period of time (namely three days) outside the appeal period and that the written reasons for judgment of the Federal Circuit Court were not provided until after the appeal period had elapsed (the appeal period running from the date on which the orders were made). I note also that the first respondent accepts that, in these circumstances, there is an acceptable explanation for the delay. Nevertheless, it is necessary to consider whether any appeal would have any prospect of success. Having regard to the careful and detailed reasons of the primary judge, in my view, any appeal would not have any prospect of success. The primary judge set out the background at [1]-[13] of the Reasons and the review process before the Administrative Appeals Tribunal (the Tribunal) at [14]-[20]. This included a description of the applicant's claims at [11] and [17] of the Reasons. The primary judge described the Tribunal's reasons for rejecting the applicant's claims at [19] of the Reasons. The primary judge then dealt with the applicant's three grounds of judicial review at [26]-[49], rejecting each of these grounds. The primary judge's reasons for rejecting each of these grounds are clear and cogent. Assuming these grounds were replicated on any appeal, they would not, in my view, have any prospect of success. I note that the primary judge also considered the Tribunal's reasons more generally and concluded (at [50]-[52] of the Reasons) that he did not discern any jurisdictional error. 8 In light of the above, the substantive application in this Court (namely the application for an extension of time) does not have any reasonably arguable prospect of success. It follows that the application for reinstatement (and for ancillary orders) is to be refused. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.