SZSXC v Minister for Immigration and Border Protection

1. The application for an extension of time filed on 10 February 2016 be dismissed.
2. The Applicant pay the First Respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The applicant has applied for an extension of time in which to file a notice of appeal from a judgment of the Federal Circuit Court delivered on 19 June 2015 dismissing the applicant's application for judicial review of a decision of the second respondent ("Tribunal") made on 1 May 2013. The Tribunal had affirmed an earlier decision of the first respondent ("Minister") to refuse to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth). The application was supported by an affidavit affirmed by the applicant in which the applicant purported to give an explanation as to why the notice of appeal was not filed within time. 2 The applicant is out of time in which to bring an appeal by approximately seven months. Included in the applicant's affidavit is the assertion by the applicant that he believes he has "good grounds to appeal the decision of the Federal Circuit Court". There is then set out eight proposed grounds, all of which appear to be in generic and template form and none state with any specificity the particular errors of law said to arise from the Federal Circuit Court decision. 3 The applicant has not appeared at the hearing today and has not provided any explanation for his non-attendance to the Court or to the solicitors for the Minister. I have been handed a copy of a letter from the Federal Court of Australia Registry dated 18 March 2016 sent to the applicant both at his address for service and his email address as specified in his application for an extension of time, notifying the applicant of the hearing today and the place and time of the hearing. I have also been provided with a copy of an email from the solicitors for the Minister to the applicant on 21 March 2016, also advising of the time and date of the hearing. I am satisfied that the applicant was given proper notification of the hearing date, time and location. 4 The applicant has also not complied with the order to provide submissions in support of his application. Given the failure of the applicant to attend today without explanation and comply with the order for the filing of submissions, I am prepared to proceed in the applicant's absence. 5 The applicant has not provided an acceptable explanation as to why he did not file his notice of appeal within the prescribed time. 6 The applicant deposed that he did not speak English and given the significant language barriers, he did not understand the decision of the Federal Circuit Court. He also deposed that he did not understand was not made aware of his legal options or understand that there was a possibility for him to apply to the Federal Court. He further deposed that he has now been advised that he is out of the prescribed time limit in which to appeal and thus needs to make an application for extension of time. He asserted that he was denied an opportunity to lodge an appeal to this Court within the time required due to no fault of his. 7 I note that the applicant was represented by solicitors and counsel at the hearing before the Federal Circuit Court and I am not satisfied on the basis of the scant detail provided by the applicant in his affidavit that a proper explanation has been provided as to why he did not file his application within time. Mere assertions in generalised terms without providing detail concerning what eventuated following the handing down of the Federal Circuit Court decision and how it is that the applicant has since become aware of his entitlement to file a notice of appeal does not suffice. The case law emphasises the requirement that applicants for an extension of time in which to appeal must provide a cogent reason for the failure, particularly where the time that has been elapsed is significant, as it has been in the present case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176, 348-9 (FCR). Time limits are not to be ignored. 8 Additionally, the generic template grounds of appeal do not identify the actual basis upon which the applicant would seek to appeal the decision of the Federal Circuit Court. The nature of the grounds, as identified, indicates that this is not a genuine appeal that is intended to be pursued by the applicant. Accordingly, for those reasons, I dismiss the application for an extension of time. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.