FTY17 v Minister for Immigration and Border Protection

1. The application for an extension of time and for leave to appeal is dismissed.
2. The applicant pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 This is an application, filed on 26 November 2018, pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) for an extension of time to appeal and leave to appeal from orders made by the Federal Circuit Court of Australia on 30 October 2018. 2 Those interlocutory orders were: 1. The Application in a Case made on 17 October 2018 is dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). 2. The applicant is not permitted to make any further application in relation to the Administrative Appeals Tribunal decision of 4 December 2017 without leave of the Court. 3. The applicant pay the first respondent's costs set in the amount of $350. 3 The application in a case which was dismissed by the primary judge sought to set aside orders of the Registrar made on 4 October 2018 which dismissed the applicant's judicial review application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2011 (Cth) due to the applicant's failure to appear at a call-over. 4 The applicant requires an extension of time of 13 days to bring his application for leave to appeal. 5 The primary judge made the following findings. The applicant had reasonable notice of the Court event on 30 October 2018. When the matter was called the applicant did not appear. He had therefore not attended at Court to prosecute his Application in a Case. No explanation for the non-attendance was available. The medical certificate before the Court did not relate to 30 October 2018. Nor had there been any application for any adjournment. It was therefore appropriate, the primary judge said, that he make the order that the Minister sought. It was also appropriate, the primary judge said, given that that was the second occasion when the applicant had not attended at a Court event in the same matter, that he also make an order that any further application relating to the Tribunal's decision be subject to the leave of the Federal Circuit Court. 6 The applicant deposed that he only received the orders on 20 November 2018. The Minister accepts this fact. 7 The relevant background is as follows. The applicant is a citizen of China. He obtained a passport in July 2014 and travelled to Thailand in January 2015, thereafter returning to China. He first arrived in Australia on 13 February 2015 as the holder of a Tourist (FA-600) visa, which was valid until 24 February 2015. On 20 February 2015, the applicant applied for a Protection (XA-866) visa. He claimed fear of persecution in China. He claimed that he would be at risk of harm if he returned to China because he practiced Falun Gong. 8 The applicant failed to attend a scheduled protection visa interview on 21 August 2015. The applicant did not provide an explanation for his non-attendance and the interview was not rescheduled. 9 On 26 August 2015, the delegate refused the protection visa application. The delegate was not satisfied that the claimed fear of persecution was well-founded: the delegate had not had the opportunity to verify the applicant's claims and obtain substantiating detail from him. 10 On 30 September 2015, the applicant applied to the Administrative Appeals Tribunal for review of the delegate's decision. On 4 December 2017, the applicant appeared before the Tribunal to give evidence and present submissions. On the same day, it appears, the Tribunal affirmed the decision not to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth). The Tribunal did not find the applicant to be a truthful or a credible witness. The Tribunal found, at [36]: After considering all of the relevant evidence I am not satisfied that the applicant practiced Falun Gong in China at any time, or that anyone denounced him to the authorities for practicing Falun Gong or that he was detained or sent for re-education in China for practicing Falun Gong. Nor do I accept that he practices Falun Gong in Australia. It follows that I do not accept that he is of interest to the Chinese authorities because of his past involvement in Falun Gong or that he wishes or intends to practice Falun Gong if he returns to China. 11 The applicant sought judicial review of the decision of the Tribunal, by application filed in the Federal Circuit Court on 28 December 2017. 12 On 5 February 2018, the matter was listed for a call-over before Registrar Cho on 4 October 2018. The applicant did not attend and the application was dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules. 13 On 17 October 2018, the applicant filed an Application in a Case seeking to have the orders made on 4 October 2018 set aside pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules, which provides that the Court may vary or set aside its judgment or order after it has been entered if, relevantly, the order was made in the absence of a party. 14 The matter was listed for a directions hearing before the primary judge on 30 October 2018. The applicant failed to attend the directions hearing and the Application in a Case dated 17 October 2018 was dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules. 15 The proposed grounds of appeal are as follows: 1. I applied to reopen my case but it was dismissed. I only received the order from Government Litigation on the 20th November 2018 via email. 2. I request FCC to review the order. 16 The Minister relied on an affidavit by Ms Jessica Ruth Noakesmith, solicitor, affirmed 4 March 2019, which annexed the judgment and orders of the primary judge and the decision record of the Administrative Appeals Tribunal dated 4 December 2017. 17 The applicant filed no written submissions. In oral submissions, the applicant said that he did not turn up at the last hearing as he did not receive any notice and only got the decision later. The first time he did not show up, he said, he had a very bad sickness in Canberra. He provided a medical certificate by the doctor. He said that he had genuinely been persecuted which was why he came to this Court. In oral submissions in reply the applicant said that probably his friend, who managed his emails on his behalf, did not advise him properly of the 30 October 2018 hearing in the Federal Circuit Court. 18 The Minister submitted that the grant of an extension of time usually requires an acceptable reason for the delay. A further factor was that the mere absence of prejudice to the respondent was not enough to justify the grant of an extension. The Minister did not assert prejudice. The merits of the appeal were also a factor. 19 The Minister submitted that in determining the application for leave to appeal, the Court needed to consider whether the applicant had shown sufficient doubt as to the correctness of the judgment below to warrant review and, further, if the judgment below was assumed to be wrong, that substantial injustice would be suffered by the applicant if leave to appeal were refused. 20 As to the applicant's explanation for the delay, the Minister accepted that the applicant only received the order of the Federal Circuit Court on 20 November 2018 but submitted that the applicant was aware that his application could be dismissed for non-appearance, as this had occurred with respect to his substantive application. In these circumstances, and where the applicant was on notice of the directions hearing date and time for his Application in a Case but did not appear, the Minister submitted the applicant would be aware that it was also likely that this matter would be dismissed. 21 The Minister submitted that the applicant had failed to show any doubt about the correctness of the orders below, and failed to show that substantial injustice would be suffered by him if leave to appeal were refused. 22 The Minister noted that the power being exercised by the primary judge in dismissing the application was discretionary. To succeed in challenging the exercise of discretion by the primary judge to dismiss the application, the Minister submitted that the applicant would need to show an error of the kind identified in House v R [1936] HCA 40; 55 CLR 499 at 505. 23 The Minister submitted the applicant had not pointed to any basis upon which the exercise of discretion by the primary judge could be said to have miscarried. There was no relevant error on the part of the primary judge. 24 The Minister submitted the application for an extension of time and for leave to appeal should be dismissed, with costs. 25 In my opinion it is not appropriate to grant an extension of time, even of the relatively short period which the applicant seeks, where the underlying application has no substance. 26 The applicant has not shown that there is any doubt as to the correctness of the interlocutory judgment of the primary judge, whether by reference to House or otherwise. He has not provided any persuasive evidence as to the circumstances in which he failed to appear before the primary judge. I see no reason to doubt the conclusion of the primary judge that the applicant had reasonable notice of the hearing on 30 October 2018. There is no reason to doubt the conclusion of the primary judge that the medical certificate before him did not relate to 30 October 2018. 27 In these circumstances the appropriate order is that the application for an extension of time and for leave to appeal be dismissed, with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.