FGB17 v Minister for Home Affairs

1. The name of the first respondent be amended to the Minister for Home Affairs.
2. The application for an extension of time filed on 2 November 2018 be dismissed.
3. The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

YATES J: 1 The applicant seeks an extension of time to appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 24 September 2018. An extension of time is required because a notice of appeal should have been filed within 21 days of the date of the Federal Circuit Court judgment: r 36.03 Federal Court Rules 2011. In the present case, a notice of appeal should have been filed no later than 15 October 2018. The application for the extension of time was filed on 2 November 2018. 2 The applicant is a citizen of Malaysia. He arrived in Australia on 27 November 2016 as the holder of a UD-601 Electronic Travel Authority Visa. On 17 February 2017, he applied for a protection visa. He claimed to fear harm because his employer blames him for a robbery in which money was stolen. On 23 March 2017, a delegate of the first respondent (now the Minister for Home Affairs) (the Minister) refused the application. On 26 March 2017, the applicant applied for review of the delegate's decision before the second respondent, the Administrative Appeals Tribunal (the Tribunal). 3 In his reasons for judgment, the primary judge recorded the following facts: 5. By letter dated 19 October 2017, the applicant was invited to attend a hearing to take place on 17 November 2017. That letter informed the applicant that the Tribunal was unable to make a favourable decision on the information alone. The applicant failed to appear at the hearing. Evidence has been led identifying that there were two separate SMS reminders sent to the applicant, five days and one day before the scheduled hearing. 6. The Tribunal found that the applicant had been properly invited to appear in accordance with the statutory regime. The Tribunal noted that the applicant had received SMS reminders sent to the mobile telephone number provided by the applicant. The Tribunal in those circumstances decided to dismiss the application under s 426A(1A)(b) of the Act. 7. The dismissal application was notified to the applicant in accordance with statutory regime and on 6 December 2017 the Tribunal found the applicant had been notified of the dismissal application in accordance with the statutory regime and that there had been no application for reinstatement and accordingly the Tribunal confirmed the decision to dismiss the application. 4 The primary judge also recorded the following background facts relevant to the application for judicial review which the applicant had filed in the Federal Circuit Court: 8. These proceedings were commenced on 30 November 2017. On 15 January 2018, a Registrar of the Court made orders giving the applicant the applicant [sic] an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 9. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation given by the Court.. 10. The applicant put no submissions from the bar table. The Court repeated the explanation to the applicant that if no submissions were put by the applicant from the bar table, the Court would not call upon the solicitor for the first respondent for submissions. The Court confirmed with the applicant that he had received the first respondent's submissions and the applicant confirmed he wished to put no submissions in regard to the application. 5 The application for judicial review contained two grounds: stated as follows: 11. The grounds in the application are as follows: 1. Decision was made without solid proofs. 2. Fair decision process was not given to applicant. 6 The primary judge rejected both grounds. 7 As to Ground 1, the primary judge found that it was open to the Tribunal to dismiss the application for review in circumstances where the applicant had failed to appear or respond to the invitation which the Tribunal had given. Further, it was open to the Tribunal, in the absence of a reinstatement application, to dismiss the application, in accordance with the regime under s 426A of the Migration Act 1958 (Cth) (the Act). 8 As to Ground 2, the primary judge found that there was no procedural unfairness in following the statutory regime. The applicant was given an opportunity to attend a hearing before the Tribunal and an opportunity to reinstate the proceeding after it had been dismissed by the Tribunal because of the applicant's failure to attend. 9 The applicant has not appeared at the hearing of the application today. The matter was called outside the Court and inquiries were made of the Registry to see whether any contact had been made by the applicant with the Court. Further, the Minister's solicitor has informed me that she has received no contact from the applicant concerning his attendance at today's hearing. I have, therefore, decided to proceed with the hearing on its merits. 10 The applicant's draft notice of appeal in this Court contains two grounds, expressed as follows: 1. The Federal Judge failed to consider that the Tribunal ignore that the applicant satisfy the key elements of Convention definition as detailed in Tribunal decision. 2. The Federal Judge failed to consider that the Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per Migration Act.(which is mandatory). 11 There is a complete disconnect between these draft grounds of appeal and the case sought to be advanced by the applicant in the Federal Circuit Court. There is also a complete disconnect between those draft grounds and the manner in which the applicant's application for review proceeded before the Tribunal. 12 The applicant would require leave to rely on each ground if time were to be extended. I can see no conceivable basis on which leave would be granted. The grounds are misconceived. The Tribunal dismissed the review application pursuant to s 426A(1A)(b) of the Act and later confirmed that decision, as it was obliged to do in circumstances where the applicant did not apply for reinstatement pursuant to s 426A(1E) of the Act. As the Minister submitted, in those circumstances the Tribunal was not required to make an assessment on whether the applicant met ss 36(2)(a) or 36(2)(aa) of the Act. The contention that the Tribunal ignored that the applicant satisfied the Convention criteria and failed to properly consider whether the applicant would suffer serious harm misapprehends the nature of the Tribunal's decision. It follows that, notwithstanding the grounds sought to be advanced in the draft notice of appeal, there could be no error(s) on these bases. 13 The proposed grounds of appeal are without merit and cannot succeed. It follows that there would be no utility in extending time for the applicant to appeal. 14 For these reasons, the application to extend time will be dismissed, with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.