DGC18 v Minister for Home Affairs

IN NSD 2112 of 2018 CVI18 v MINISTER FOR HOME AFFAIRS, THE COURT ORDERS THAT: 4. The application for an extension of time in which to file a notice of appeal be granted and the appeal dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This concerns four matters that were heard together with five other matters on 27 February 2019 and for which judgment was delivered on that same day in DGC18 v Minister for Home Affairs [2019] FCA 250. These matters all relate to unsuccessful applications for Protection (Class XA) Visas and were heard together because they all raise one ground of appeal, which is identical in each case. This ground of appeal sought to challenge authority of the Full Court of the Federal Court. 2 The reason that a separate judgment has been delivered arises from the nature in which the proceedings were commenced. In those other five matters, the appellants commenced proceedings by way of a notice of appeal. Out of the four matters the subject of this judgment, in DGC18 and BRJ18, the applicants commenced proceedings by way of an application for extension of time to seek leave to appeal; and in SZSKJ and CVI18, the applicants commenced proceedings by way of an application for extension of time in which to appeal. Additionally, in seven of the total nine matters in which the appellants or applicants were represented, whilst it was accepted that the appeals or applications could not succeed, it was formally submitted by them that the Full Court of the Federal Court decision in SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121 was wrong. 3 On 27 February 2019, I made orders dismissing the appeals in those other five matters. Given that the appeals or applications all relate to one identical question of law, a finding that one fails must mean that all others fail. However, orders were not made with respect to these four matters on 27 February 2019, so as to allow me time to consider whether it would be a proper exercise of judicial power to allow the extension of time and, if relevant, grant leave to appeal so that the applicants in these four matters may be in a position to apply to the High Court for special leave and therefore be put in the same procedural position as the other five appellants. 4 If the applications for an extension of time to seek leave to appeal or applications for an extension of time in which serve a notice of appeal in these four matters were to be refused, the applicants would or may not be entitled to apply to the High Court for special leave to appeal. 5 In my view the correct course in this particular circumstance is to allow the extension of time and, if relevant, to grant leave to appeal, but dismiss the appeal in each of these matters. In coming to this conclusion, the following matters are relevant. First, the delay in filing was not significant and the respondent submitted that it was not prejudiced by the delay. Secondly, the respondent submitted that in each case it accepted that if the Court were minded to grant an extension of time, it would also be minded to grant leave and vice versa. Thirdly, in two of these four matters, DGC18 and BRJ18, the applicants were self-represented. Fourthly, in seven of the nine cases, including two of the four matters being considered here, it was submitted on behalf of the applicants and appellants that they preserve their position that the Full Federal Court authority is wrong. Fifthly, these applications relate to Protection (Class XA) Visas. Finally and most significantly, the Court considers that the administration of justice would appear unfair to these four applicants if, as a result of the form of the order, they were not entitled to seek special leave in the same way as the other five appellants, when the matters have been heard together and the appellants and applicants have been treated in the same way in the proceedings in all other respects. 6 Whilst the Court does not consider a potential special leave application to have strong prospects of success, the Court considers that in these particular circumstances the administration of justice favours this course. This decision should not be taken as disrupting the usual relevant factors that the Court considers, including prospects of success, when determining whether an extension of time should be allowed and leave granted. 7 The Court therefore will allow the extensions of time and grant leave to appeal in DGC18 and BRJ18. As leave to appeal was considered to be unnecessary in SZSKJ and CVI18 (see DGC18 v Minister for Home Affairs [2019] FCA 250), the Court need only allow the extensions of time sought by the applicants in those matters. I certify that the preceding seven (7) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.