Mohammed v Minister for Immigration and Border Protection

The delay in filing & the explanation provided 14 The Application was filed some 47 days out of time and there is no real explanation for the delay. The affidavit filed in support of the Application simply states (without alteration): 9. I was not able to find a lawyer to represent me or understand the way to deal with the appeal process to the Federal Court of Australia. 10. I also had severe back problem that made me medically unfit. 11. I also having financial issues that I am unable to meet the expensive court filing fees and no one advised me on how to resolve all the basic problem. In respect to this explanation, it may be noted that: no details are set forth as to what steps were undertaken with a view to finding "a lawyer to represent" the Applicant or when those steps were undertaken; the evidence in support of the "severe back problem" is to be found in hospital records from a hospital in Hyderabad in India and dated March 2017 and a medical certificate from a doctor in Auburn, New South Wales stating that as at May 2018 Mr Mohammed had "severe back pain which leads to depression" and certified him as being "unfit for any studies or normal duties" for the "next two weeks". The medical certificate is contemporaneous with the date of the decision of the Federal Circuit Court but provides no real exposition of Mr Mohammed's medical condition for anything other than a two weeks period; and there is no detail to support the assertion of "financial issues". 15 In such circumstances, the absence of explanation for the delay would have assumed some relevance if consideration was to be given to extending time. But it was the absence of merit in the proposed Grounds of Appeal which dictates the rejection of the application for an extension of time.

The absence of merit in the proposed Grounds of Appeal 16 Those proposed Grounds of Appeal are without merit. 17 There are five proposed Grounds, which assert: error on the part of the primary Judge in not concluding that the "Respondents did not make jurisdictional error by failing to exercise jurisdiction"; a failure on the part of the Tribunal to comply with s 359A of the Migration Act 1958 (Cth); a failure on the part of the Tribunal to comply with s 359AA of the Migration Act; a failure on the part of the Tribunal to "take into account relevant consideration"; and a denial of procedural fairness by the Tribunal. 18 Proposed Grounds 2 to 5 substantially repeat the Grounds of Review relied upon before the primary Judge. If the fact that these proposed Grounds do not assert any appellable error on the part of the primary Judge be left to one side, the manner in which the primary Judge resolved the comparable grounds of review does not expose any self-evident error. Sections 359A and 359AA of the Migration Act both refer to "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". In resolving the first Ground of Review (being Ground 2 of the proposed Grounds of Appeal), the primary Judge relevantly concluded as follows (without alteration): [22] The particulars to ground 1 identify four items which the ground claims constitute information the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The items identified in paragraphs (a) and (c) of the particulars are said to be the "concerns" the Tribunal recorded as having raised with the applicant, in relation to the evidence identified in those paragraphs; and the item identified in paragraph (b) is "doubts" the Tribunal recorded as having raised with the applicant. The item in paragraph (d) of the particulars is the Tribunal's conclusion that the applicant's current enrolment would have limited value in relation to increasing his employment prospects in his home country. [23] The items identified in paragraphs (a), (b) and (c) of the particulars to ground 1 are either subjective appraisals or thought processes of the Tribunal, and the item identified in paragraph (d) of the particulars is a determination. It has been held, however, that "information", as used in section 424A of the Act (which is identical to section 359A of the Act) "does not encompass the tribunal's subjective appraisals, thought processes or determinations." That is a quote from the judgment of Justices Finn and Stone and in Minister for Immigration & Multicultural and Indigenous Affairs v VAF [[2004] FCAFC 123 at [24], (2004) 236 FCR 549 at 555], which were words included in a passage set out, with the approval of the High Court, in SZBYR v Minister for Immigration and Citizenship [[2007] HCA 26 at [18], (2007) 96 ALD 1 at 8 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ]. Thus, none of the items identified in paragraphs (a), (b), (c) or (d) of the particulars to ground 1 is "information" to which s.359AA or s.359A of the Act applied. That means the Tribunal was not required to give to the applicant clear particulars of those items. (Footnotes omitted.) The second Ground of Review (being the third proposed Ground of Appeal) failed for similar reasons: [2018] FCCA 1502 at [26] to [27]. The third Ground of Review (being the fourth proposed Ground of Appeal) was rejected because (inter alia) there was no failure on the part of the Tribunal to consider any "relevant consideration": [2018] FCCA 1502 at [28] to [30]. The final Ground of Review (being the fifth proposed Ground of Appeal), namely the allegation as to a denial of procedural fairness, was rejected by the primary Judge upon the bases (inter alia) that it largely overlapped earlier Grounds of Review: [2018] FCCA 1502 at [31] to [33]. These reasons and conclusions of the primary Judge disclose no self-evident error. 19 The proposed Grounds of Appeal, with respect, disclose no self-evident merit so as to justify an extension of time being granted in order for one or other of the Grounds to be probed in any greater detail. 20 Even had a satisfactory explanation for the delay in commencing the proceeding in this Court been forthcoming, the absence of any reason to question the conclusions of the primary Judge would of itself have been sufficient to refuse the extension of time sought.

CONCLUSIONS 21 The proceeding should be dismissed by reason of the failure on the part of Mr Mohammed to appear. There is no discretionary reason why the proceeding should not be dismissed. 22 Even had the proceeding not been dismissed for his want of appearance, the application for an extension of time would have been refused. It was an application not supported by a satisfactory explanation for the delay and the proposed Grounds of Appeal are without any merit. 23 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1. The proceeding is dismissed.
2. The Applicant is to pay the costs of the First Respondent, either as agreed or assessed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.