Mehmood v Attorney-General of the Commonwealth

REASONS FOR JUDGMENT 1 On 26 April 2013, the applicant applied for an extension of time within which to seek leave to appeal from a judgment of a judge of this Court given on 4 April 2013 (Mehmood v Attorney-General of the Commonwealth [2013] FCA 287) and, if successful with his extension of time application, for leave to appeal from that judgment. The judgment of the primary judge is interlocutory. For that reason, the applicant must obtain leave to appeal before any appeal can be instituted. 2 At the same time, the applicant filed an Interlocutory Application by which he sought an injunction restraining his removal from Australia and other relief. 3 Rule 35.13 of the Federal Court Rules 2011 (Federal Court Rules) provides that an application for leave to appeal from an order of a judge of this Court to the Full Court must be filed within 14 days from the date on which judgment was pronounced or the order was made. Therefore, the applicant was obliged to make his application for leave to appeal by no later than 18 April 2013. The applicant was eight days late. In the ordinary course, an application for an extension of time within which to seek leave to appeal would fall to be considered against the requirements of r 35.14 of the Federal Court Rules. That rule provides as follows: 35.14 Extension of time to seek leave to appeal (1) A person who wants to apply for an extension of time to seek leave to appeal must file an application, in accordance with Form 118. (2) The application may be made during or after the period mentioned in rule 35.13. (3) The application must be accompanied by the following: (a) the judgment or order from which leave to appeal is sought; (b) the reasons for the judgment or order, if published; (c) an affidavit stating: (i) briefly but specifically, the facts on which the application relies; and (ii) why the application for leave to appeal was not filed within time; and (d) a draft notice of appeal that complies with rules 36.01 (1) and (2); (e) a statement by the applicant of whether the applicant wants to have the application considered without oral argument. Note 1 The Court may grant an extension of time, and hear and determine the application for leave to appeal, at the same time. Note 2 An application under rule 35.12 or 35.14 will be heard and determined by a single Judge unless the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it appropriate to hear and determine the application. Note 3 File is defined in the Dictionary as meaning file and serve. 4 The terms of that rule are substantially the same as the terms of r 36.05 of the Federal Court Rules, which prescribes the matters which must be addressed when a litigant seeks an extension of time within which to file a Notice of Appeal. 5 In DZAAD v Department of Immigration and Citizenship [2013] FCA 204, I summarised the principles to be applied when the Court is considering an application for an extension of time under r 36.05. At [28]-[30] I said: The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (per Wilcox J); Jess v Scott (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (per Spender, O'Loughlin and Dowsett JJ); Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]-[27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (per Cowdroy J)). The Minister has, quite properly, accepted that, given the short delay involved in the present case and the difficulties confronting the applicant as an unrepresented litigant in circumstances where he had family separation issues with which to deal as well as a move to Canberra, the applicant has more than adequately explained any delay in instituting his appeal. The Minister, nonetheless, opposes the grant of an extension of time on the basis that the appeal which the applicant seeks to file has no prospect of success. The Minister submitted that an extension of time, even for a short period, may be refused if an appeal has no prospect of success (as to which, see Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at 216 [14] per Jessup J with whom Gyles and Besanko JJ agreed). It would be a proper exercise of the Court's discretion to refuse the extension of time which has been sought if the appeal has no prospect of success, even if the delay is a short one. 6 The same principles should be applied when considering an application for an extension of time under r 35.14 of the Federal Court Rules. 7 In the present case, the primary judge held that this Court has no jurisdiction to entertain or determine the claims for relief made by the applicant in the proceedings below. If that conclusion is correct, it would follow that the Full Court has no jurisdiction to hear any appeal from his Honour's decision nor any jurisdiction to hear applications ancillary to such an appeal. 8 Both the jurisdictional question and the extension of time application require the Court to look at the nature of the applicant's substantive claims. If the Court has jurisdiction, other factors will need to be considered in relation to the applicant's application for an extension of time and his application for leave to appeal. 9 Before the primary judge, the applicant sought to challenge a decision by the Attorney-General of the Commonwealth to cancel a Commonwealth criminal justice stay certificate which had been granted to the applicant in circumstances which I shall shortly explain. The second respondent, the Commonwealth Director of Public Prosecutions (CDPP), took certain steps that led to the Attorney-General's decision to cancel the applicant's criminal justice stay certificate. The third respondent (the Minister) acted upon that cancellation and cancelled the criminal justice stay visa held by the applicant based upon the criminal justice stay certificate which had been issued in respect of him. 10 Under the relevant provisions of the Migration Act 1958 (Cth) (the Migration Act), the cancellation of a Commonwealth criminal justice stay certificate automatically leads to the cancellation of any criminal justice visa issued by the Minister upon the basis of that certificate (see s 164). 11 The primary judge held that this Court had no jurisdiction in the matter and that the only court which might have jurisdiction to assist the applicant is the Federal Circuit Court of Australia.