CVR15 v Minister for Immigration and Border Protection

1. The application for an extension of time be dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).
2. The applicant pay the first respondent's costs of the application, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNY J: 1 This is an application for an extension of time within which to file a notice of appeal from a judgment of the Federal Circuit Court of Australia delivered on 7 June 2018, dismissing the applicant's application for judicial review of a decision of the Administrative Appeals Tribunal. On 3 December 2015, the Tribunal had affirmed a decision of a delegate of the respondent Minister dated 20 June 2012 not to grant the applicant a Protection (Class XA) visa (protection visa). The Federal Circuit Court's decision has the citation: CVR15 v Minister for Immigration & Anor [2018] FCCA 1380. 2 Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), the applicant was required to file any notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. As judgment had been delivered by the Federal Circuit Court on 7 June 2018, the applicant had to file a notice of appeal by 28 June 2018 to be within time. The applicant did not file a notice of appeal by that date. He therefore requires an extension of time to do so. The application for an extension of time was filed on 5 July 2017, some seven days late. The Court may grant such an extension of time under r 36.05 of the Federal Court Rules. 3 The applicant did not appear at the hearing, today, 28 February 2019; and the Minister has applied for the application to be dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the basis of the applicant's non-appearance. 4 Section 25(2B)(bb)(ii) of the FCA Act empowers a single judge or a Full Court to make an order that an appeal to the Court be dismissed for the failure of the appellant to attend a hearing relating to the appeal. While that provision refers in its terms only to the dismissal of an appeal, s 25(2BA) of the FCA Act provides that in s 25(2B) a reference to an appeal includes a reference to an application of the kind mentioned in s 25(2), which relevantly includes applications for an extension of time within which to institute an appeal. As such, it is clear that s 25(2B)(bb)(ii) also applies to the present application. The following circumstances are relevant to my conclusion that it is appropriate to proceed in the applicant's absence as contemplated by s 25(2B)(bb)(ii). 5 Although the applicant did not appear today, it would appear that the applicant was given adequate notice that his extension of time application was to be heard today. By emails dated 16 August 2018 and 27 September 2018, the Court originally notified the parties that the application would be heard in Melbourne in November 2018. The Court subsequently notified the parties, by email dated 2 October 2018, that the matter had been re-listed for hearing on 28 February 2019 at 2.15pm. A copy of this correspondence was also sent to the applicant by post on 4 October 2018. 6 On 5 November 2018, the applicant called Chambers seeking an adjournment of the hearing date. Chambers staff asked the applicant to email Chambers explaining the reason why he sought an adjournment. On 6 November 2018, the applicant emailed requesting an adjournment on the basis that his mother (who was in Iran) was unwell and he had applied for a Bridging Visa B to travel to Iran to visit her, but was awaiting the outcome of his application. On 7 November 2018, Chambers staff advised the applicant that the hearing date would remain in place, having regard to the fact that his travel plans remained uncertain, and asked the applicant to inform Chambers if his plans to depart Australia were likely to eventuate. 7 The Court emailed the parties on 12 November 2018, amongst other things noting that the applicant's submissions were due to be filed and served by 17 January 2019. On the same day, 12 November 2018, the applicant again requested that the matter be adjourned on the bases that he did not have a lawyer and was waiting for Victoria Legal Aid to decide whether to provide the applicant with legal assistance, and because he wished to travel to Iran to visit his mother. On 13 November 2018, Chambers staff emailed the applicant reiterating that the Court would not adjourn the hearing given that his future plans remained uncertain. 8 Chambers staff subsequently sent a further email to the parties on 18 January 2019. This email noted that the applicant had not filed written submissions as required, reminded the applicant that it was important to attend the hearing today (28 February 2019) and advised that if he did not attend the Court may proceed in his absence. The email also requested that the parties confirm receipt of the email. The applicant did not respond to this email. 9 On 22 February 2019 and 25 February 2019, Chambers staff called the telephone number provided by the applicant on his notice of appeal. On both occasions the phone did not ring, and there was an automated message stating that the mobile phone was switched off. Chambers staff again sought to contact the applicant by telephone today prior to the commencement of the hearing. Again, an automated message advised that the mobile phone was switched off. 10 I am confirmed in my view that it is appropriate to dismiss the appeal, having regard to the draft notice of appeal accompanying the applicant's extension of time application. It seems to me that the proposed appeal would lack sufficient merit to justify granting the extension of time sought. 11 The principles applicable to the exercise of the Court's discretion to grant an extension of time are well established. Generally speaking, the Court has treated the principles and factors referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 as relevant to a decision whether to extend time in which to appeal under r 36.05 of the Federal Court Rules. The factors that fall for consideration include the length of the delay and the explanation for it, any prejudice to the respondent if the extension is allowed, and whether there is sufficient merit in the proposed appeal to justify an extension of time. These considerations are not exhaustive, and the outcome of an extension of time application will always depend on the particular circumstances of the case. 12 An affidavit sworn by the applicant on 2 July 2018 and a draft notice of appeal dated 5 July 2018 accompanied the application. The applicant deposed that the 7-day delay in filing his notice of appeal arose because he experienced difficulty collecting the funds needed to pay his legal fees and the fees required for an appeal to this Court following the Federal Circuit Court's decision. He stated that this delayed him from instructing his lawyers to prepare his appeal. He deposed that his mental health had previously prevented him from working full-time, and that he had been working more hours recently to repay debts and to cover the costs of his legal fees. 13 The Minister did not take issue with the adequacy of the applicant's explanation for the delay and, in the circumstances, the applicant's explanation for what was a very short delay should be accepted. The Minister did not claim that he would be prejudiced by the extension of time sought by the applicant. The Minister opposed the extension of time application on the basis that the applicant's proposed ground of appeal was hopeless and an extension of time would be futile. As explained below, it would appear that this is so. 14 By his draft notice of appeal, the applicant sought to raise the following single ground of appeal: The Federal Circuit Court erred by failing to conclude the decision of the Tribunal made without jurisdiction or affected by an error of jurisdiction, in that the Tribunal failed to deal with an integer of the appellant's claims in relation to relocation. 15 The applicant's proposed ground of appeal effectively repeats the claim made before the primary judge. The primary judge gave careful consideration to the applicant's claims and submissions, and rejected the claim that the Tribunal failed to deal with an integer of his claim in relation to relocation (at [251], [266]). While acknowledging that the applicant did not appear today to advance his case, there is no apparent error in his Honour's conclusion. The principles as to relocation were referred to by his Honour and they informed his consideration of the Tribunal's reasons: see SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; 233 CLR 51 at [14]; and Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [25]. Significantly, the Tribunal referred expressly to having "considered submissions which argue that the applicant is unable to manage his condition in Australia and would be less likely to do so where he feels subjectively unsafe" (at [171]). The Tribunal said that it gave "little weight" to that submission, which it described as "speculative" in light of its other findings (at [171]). As the primary judge found, this paragraph in the Tribunal's reasons, read in the context of the reasons as a whole, demonstrated that the Tribunal specifically considered the applicant's claim about his mental condition and fear of return (see at [252]-[266]). 16 The following parts of the Tribunal's reasons also show that the Tribunal considered the applicant's claims about his mental condition. The Tribunal expressly "acknowledge[d] the arguments put forward that the main barrier to relocation is the applicant's mental health", and accepted his diagnosis of PTSD (although not the factual foundation of the cause of that illness) (at [169]). Prior to its analysis of relocation, the Tribunal referred to Dr Pastore's report at [22] and [92], and "noted that treatment does appear to be available in Pakistan as the applicant and his father have both received treatment for mental health issues"; that "the drugs that he takes appear to be available in Pakistan"; and that the applicant said drugs will not help him "because he will be thinking every day that he will die that day" (at [92]). The Tribunal also referred to a hospital for mental health in Multan at [94] and noted that it had before it "numerous reports in relation to the applicant's mental state" at [101]. The Tribunal returned to the applicant's mental health in the specific section on relocation (at [161]-[162], [169]-[171]). Among other things, the Tribunal noted the psychiatric treatment available in Pakistan (at [170]). 17 Having regard to the Tribunal's reasons, there would not appear to be a tenable basis for saying that the Tribunal overlooked a claim that relocation would be unreasonable, having regard to the applicant's mental condition and fear of return. Having regard to the way in which the applicant particularised much the same ground and presented his case before the primary judge, it may reasonably be assumed that this is the only basis on which he would have sought to reiterate this ground on his proposed appeal.