Islam v Minister for Immigration and Border Protection

Legal principles 21 Rule 36.03 of the Rules requires that an appellant must file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. The primary judge made his orders dismissing the applicant's application filed in the Federal Circuit Court on 10 November 2015. Accordingly, the last day on which a notice of appeal could be filed was 1 December 2015. The application for an extension of time was filed on 10 December 2015, nine days late. 22 The factors to which the Court is to have regard in determining an application for an extension of time within which to file a notice of appeal are well understood. In SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, relying on Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344, Murphy J set out those factors at [19] as follows: Accordingly, the application for an extension of time requires consideration of the following factors; (a) satisfaction that it is proper to do so, noting that the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay; (b) any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; (c) the merits of the appeal. 23 The Minister submits that he can point to no prejudice should the extension of time be granted. I accept that submission and, in light of it, will not deal further with that factor. 24 I will consider the remaining two factors in turn, in the context of the present application.

Explanation for the delay 25 In his affidavit in support of his application at [7] the applicant says: My appeal is out of time limit. Because was sick. I attach medical certificate for your kind consideration. 26 Attached to the affidavit is a medical certificate from Rockdale Medical Centre which certifies that the signatory, whose identity is not disclosed but who may be one of the two doctors mentioned on the letterhead, examined the applicant on 9 December 2015 and provides an opinion that he "is/was suffering from migraine" and that he "will be/was unfit for work/school" from 7 December 2015 to 9 December 2015 inclusive. 27 The medical certificate post dates the end of the 21 day period in which the applicant was required to file any notice of appeal by the Rules. At its highest, it explains the delay from 7 December 2015 to 9 December 2015 inclusive. However, as submitted by the Minister, there is no explanation of why the applicant was unable to commence the appeal proceedings within time, by 1 December 2015, nor is there any explanation of the delay from 2 December to 6 December 2015. 28 In the circumstances, there is, in my opinion, no acceptable explanation for the delay provided by the applicant.

Merits of the appeal 29 The proposed grounds of appeal in the draft notice of appeal are: 1. I am not satisfied with the judgment of the Federal Circuit Court. 2. The decision deprived me of the natural justice. 3. I will provide more grounds later. 30 In his affidavit in support of his application the applicant includes the following: … 2. The Federal Circuit Court judge dismissed the appellant's judicial Review application SYG1517/2015 without giving any reasonable grounds. 4. There were arguable grounds to the judicial review application, but unfortunately the federal Circuit Court Judge Street failed takes into account all relevant grounds when making decision. 5. The appellant believes that the Federal Circuit breached the rules of natural justice and procedural fairness when making its decision. 6. The Federal Circuit Court Judge Street failed to identify the error made by the Administrative Appeals Tribunal. … 31 When invited to make submissions in relation to his application for an extension of time, the applicant referred to a finding by the Minister that a document that he had provided in relation to his financial status was bogus, that the document was not in fact bogus and that he had not been able to provide any further document. As submitted by the solicitor for the Minister, that issue related to the application of Public Interest Criterion 4020 and the decision of the first Tribunal which was the subject of an application for judicial review to the Federal Circuit Court and which was, in turn, remitted by consent to the Tribunal, differently constituted. 32 The decision of the Tribunal that was considered by the primary judge in Islam was that of the Tribunal differently constituted. The issue of the application of Public Interest Criterion 4020 did not arise. Rather the issue for the Tribunal was whether the applicant met the requirements of cl 573.223(1)(a) of the Regulations. On that basis the submission made by the applicant does not go to the grounds of appeal raised in the draft notice of appeal. No further submissions were made. 33 Ground 1 of the draft notice of appeal simply expresses disagreement with the primary judge's judgment. It is not a proper ground of appeal. Similarly ground 3 does not raise any arguable ground of appeal. It foreshadows the provision of further grounds. No attempt has been made to raise further grounds, for which leave would be required. The only ground in the draft notice of appeal that raises a proper ground of appeal is ground 2 by which the applicant alleges that the primary judge denied him procedural fairness. That ground is repeated by the applicant in his affidavit. The applicant also alleges in his affidavit that the primary judge erred by dismissing the applicant's judicial review application without giving any reasonable grounds, by failing to take into account all relevant grounds when making his decision and by not identifying the error made by the Tribunal. 34 In relation to the allegation of denial of procedural fairness: (1) prior to the hearing before the primary judge, the applicant was provided with an opportunity to amend his application, file further affidavit evidence and provide written submissions to the Federal Circuit Court. He did not do so; (2) at the hearing, the applicant did not make any oral submissions in support of his application. At [16] the primary judge notes that "[n]othing was said by the applicant from the bar table to identify any jurisdictional error by the Tribunal"; and (3) the primary judge considered the applicant's adjournment application made at the commencement of the hearing. The applicant did not at the time of the hearing and, has not since, provided any evidence to substantiate his claim that he attempted to obtain new legal representation prior to the Federal Circuit Court hearing on 10 November 2015. The primary judge considered the applicant's application for an adjournment of the hearing and provided reasons for rejecting it based on the state of the evidence and the submissions that were made before him. 35 Given the way in which the matter proceeded before the primary judge, it cannot be said that the applicant was denied procedural fairness. 36 The allegations that the primary judge dismissed the applicant's judicial review application without giving "any reasonable grounds" or by failing to take into account all relevant grounds have no merit. To the extent they do more than express disagreement with the findings of the primary judge, it is clear from the judgment in Islam that the primary judge considered each of the grounds raised in the applicant's judicial review application and gave cogent reasons for rejecting those grounds. 37 The unparticularised allegation that the primary judge fell into error by not identifying that the Tribunal fell into error can equally not be sustained. As I have already observed, the primary judge considered the applicant's grounds of review, which as he identified, in substance, raised the same issue, namely that the Tribunal failed to give the applicant a proper opportunity to be heard. He properly identified that those grounds could not be made out. 38 It follows that in my opinion the proposed appeal has no merit.

conclusion 39 In light of my findings in relation to the absence of an acceptable explanation for the delay and the lack of merit in the proposed appeal, I will make an order dismissing the application for an extension of time and order that the applicant pay the Minister's costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.