AOV15 v Minister for Immigration and Border Protection

[2015] FCA 1324

FEDERAL COURT OF AUSTRALIA

AOV15 v Minister for Immigration and Border Protection [2015] FCA 1324

Citation:	AOV15 v Minister for Immigration and Border Protection [2015] FCA 1324
Appeal from:	Application for extension of time: AOV15 v Minister for Immigration & Anor [2015] FCCA 2202
Parties:	AOV15 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 1071 of 2015
Judge:	JAGOT J
Date of judgment:	24 November 2015
Catchwords:	MIGRATION – application for extension of time to appeal – proposed grounds of appeal have no apparent prospects of success – application dismissed
Date of hearing:	24 November 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	13
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms C Hillary of DLA Piper
Counsel for the Second Respondent:	The second respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1071 of 2015

BETWEEN:

AOV15
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	24 NOVEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time to appeal be dismissed.

2.The applicant pay the first respondent’s costs of the application, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1071 of 2015

BETWEEN:

AOV15
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE:	24 NOVEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to appeal against a decision of the Federal Circuit Court of Australia (the Federal Circuit Court).  On 14 August 2015, the Federal Circuit Court dismissed the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).  The decision of the Tribunal was made on 10 April 2015.  In that decision, the Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.  In its reasons for judgment given on 14 August 2015, the Federal Circuit Court dismissed the applicant’s application for review on the basis that the two grounds of review which the applicant had identified did not disclose any jurisdictional error.

2. The grounds that were set out in the application to the Federal Circuit Court were as follows:

   1. RRT decision is unsupported by any evidence
   2. RRT did not fully deal with my problems

3. The Federal Circuit Court noted that the applicant had attended the hearing before the Tribunal and had the benefit of written submissions which had been provided to the Tribunal.  In relation to the first ground, the Federal Circuit Court was satisfied that the findings made by the Tribunal were open on the material before it.  In relation to the second ground, the Federal Circuit Court was satisfied that the Tribunal had dealt with the applicant’s claims, having properly addressed the various integers of those claims.  The Federal Circuit Court concluded that nothing that the applicant had said identified any jurisdictional error by the Tribunal. 

4. In the application to this Court for an extension of time, the grounds of the application are said to be set out in the accompanying affidavit.  That affidavit annexes a draft notice of appeal.  The draft notice of appeal sets out three grounds. 

5. The first ground is that there is a jurisdictional error in the Federal Circuit Court’s decision.  There are no particulars of this ground.  Nothing has been said to support this ground.  No error is apparent in the Federal Circuit Court’s decision. 

6. The second of the proposed grounds of appeal, as set out, makes little sense.  As best I can, I understand it to be that the Tribunal’s reasoning was not logical or rational.  Again, nothing has been said to support this ground.  The ground is not supported by any reference to the Tribunal’s reasoning.  I cannot see how this ground can be sustained. 

7. The third and final ground is to the effect that further appeal grounds will be provided once the applicant has legal representation and a review of the written reasons for decision has been completed.  This is not a ground of appeal.  When the matter came on for hearing, the applicant repeated that he wanted to get a lawyer and needed two to three months to do so.  I informed the applicant that I would treat this as an application to adjourn the hearing.  The applicant said that he did not understand the law and therefore needed a lawyer to give him advice.  I pointed out to the applicant that the Tribunal had made its decision on 10 April 2015, that he had appeared without a lawyer before the Federal Circuit Court on 14 August 2015 and the Federal Circuit Court had made its decision on the same date and that he had filed an application for an extension of time, apparently incorrectly dated 2 June 2014, but date stamped by the Court on 8 September 2015.  In circumstances where the applicant has had from 10 April 2015 to obtain legal representation, but has not yet done so, I was not persuaded that the hearing should be adjourned.  Accordingly, I refused the application to adjourn the hearing. 

8. The applicant, when invited to make submissions in support of his application for an extension of time, said that he had not had the Tribunal’s decision read to him by an interpreter.  I took this to be a further application to adjourn the hearing.  I pointed out to the applicant that he had had since 10 April 2015 to have the Tribunal’s decision read to him.  I also pointed out that he had appeared for himself before the Federal Circuit Court on 14 August 2015 and that before the Federal Circuit Court his claims were about the Tribunal’s decision.  The applicant responded to the effect that as this was his final opportunity, he needed to have the Tribunal’s decision explained to him. I rejected this application for an adjournment of the hearing also, noting that not only has the applicant had since 10 April 2015 to take steps to have the Tribunal’s decision explained to him,  he has appeared before the Federal Circuit Court challenging that very decision.  In addition, it was apparent from the hearing of this matter that he has had interpreted for him the Minister’s outline of submissions on this appeal dated 17 November 2015.  Those submissions in [5] to [11] set out an accurate summary of the Tribunal’s reasoning.  In these circumstances, I am not persuaded that there should be any adjournment of the hearing on this basis. 

9. The applicant also said that he wanted an opportunity to obtain further evidence which he now could obtain and put before the Tribunal.  I took this to be another application to adjourn the hearing.  However, as I explained to the applicant, I was not willing to do so because his opportunity was now to try to have the Federal Circuit Court’s decision set aside for legal error.  I could not simply adjourn the hearing to allow him to put further evidence before the Tribunal. 

10. The only other point the applicant put in his oral submissions in chief was that he feared persecution if repatriated to his country.  This does not constitute any proper ground of appeal, but relates to the merits of the Tribunal’s decision, which is beyond my jurisdiction. 

11. In his oral submissions in reply, the applicant reiterated that he needed to have a complete understanding of what was said in the Tribunal’s decision and needed at least some time to get the decision interpreted for him and/or to get advice about it.  As I understand it, these constituted further requests for an adjournment of the hearing, but, consistent with the reasons I have already given, I am not satisfied that there should be any such adjournment. 

12. I am unable to see any error in the reasoning of the Federal Circuit Court.  In these circumstances, I accept the submissions for the Minister that the proposed appeal has no apparent prospect of success. As a result, it would not be an appropriate exercise of discretion to grant the application for an extension of time to appeal. 

13. For these reasons, the application for an extension of time to appeal must be dismissed and I make orders accordingly.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:       30 November 2015