Aqq15 v Minister for Immigration and Border Protection

[2018] FCA 345

FEDERAL COURT OF AUSTRALIA

AQQ15 v Minister for Immigration and Border Protection [2018] FCA 345

Appeal from: 

Application for extension of time: AQQ15 v Minister for Immigration & Anor [2016] FCCA 2933

File number(s):

VID 1328 of 2016

Judge(s):

DAVIES J

Date of judgment:

14 February 2018

Catchwords:

MIGRATION – Application for extension of time for leave to appeal from a decision of the Federal Circuit Court of Australia; medical certificate provided; adequacy of medical evidence; applicant claimed to be seeking legal assistance; whether utility to granting leave  

Legislation:

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth)

Cases cited:

AQQ15 v Minister for Immigration & Anor [2016] FCCA 2933

MZZGY v Minister for Immigration and Border Protection [2014] FCA 488

Singh v Minister for Immigration and Border Protection [2016] FCA 108

Date of hearing:

14 February 2018

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights 

Category:

Catchwords

Number of paragraphs:

6

Counsel for the Applicant:

The applicant appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Mr Cunynghame

Solicitor for the First Respondent:

Sparke Helmore Lawyers

ORDERS

VID 1328 of 2016

BETWEEN:

AQQ15

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	DAVIES J
DATE OF ORDER:	14 FEBRUARY 2018

THE COURT ORDERS THAT:

1.The application for an extension of time and leave to appeal filed on 11 November 2016 be dismissed.

2.The applicant pay the costs of the First Respondent, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1. The applicant has applied for an extension of time for leave to appeal from the decision of the Federal Circuit Court (“FCC”) summarily dismissing his application for reinstatement of his application for judicial review of a decision of the Administrative Appeal Tribunal (“the Tribunal”) for non-appearance at the hearing of the application. Leave is required because the decision of the FCC is interlocutory: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The extension of time is also required because the applicant was approximately 32 days out of time in filing an application for leave.

2. In an affidavit sworn in support of the application for an extension of time, the applicant asserted that the delay in filing an application for leave was due to him seeking legal advice and falling ill.  Attached to his affidavit was a medical certificate by a Dr Duleep Mendis from the Family Medical and Dental Clinic at 75 Stud Road, Dandenong. The medical certificate was in the following form:

   This is to certify that [AQQ15] of OAKLEIGH EAST was assessed in this clinic on Wednesday 2 Nov 2016 – his initial presentation.  He claims that he is suffering from lower back pains and discomfort.

   [AQQ15] claims he was not able to attend work from 20/10/2016 up to 30/10/2016 inclusive.

   The certificate was dated 2 November 2016.

3. The medical certificate is totally unsatisfactory. Not only does the certificate fail to provide the most basic information required in order for the Court to be able to assess whether the applicant was suffering from some medical condition which impacted upon his ability to take appropriate action to file his application for leave within time, the certificate only sets out the “claims” made by the applicant, not the doctor’s professional opinion concerning the applicant’s state of health. Further it would appear that the delay in any event was not due to any lower back pain or discomfort the applicant claims that he suffered, as that claimed incapacity was during the period 20 to 30 October 2016 whereas the application for leave to appeal had to be filed within 14 days of 27 September 2016 (that is by 10 October 2016) being 14 days from the date on which the orders in the FCC decision were made: see r 35.13 of the Federal Court Rules 2011 (Cth); AQQ15 v Minister for Immigration & Anor [2016] FCCA 2933. If the applicant had a medical condition which prevented him from meeting the time requirement for the filing of an appeal, that needed to be explained in his application for an extension of time and be supported by a medical certificate containing sufficient details about the applicant’s health at the relevant time to enable the Court to evaluate whether the applicant’s asserted health problems were the reason for not meeting the time limits: MZZGY v Minister for Immigration and Border Protection [2014] FCA 488; Singh v Minister for Immigration and Border Protection [2016] FCA 108; [2016] FCA 620.

4. Furthermore, the applicant’s mere assertion that he was seeking legal help is an insufficient explanation. If such an explanation is to be put forward as justifying the grant of an extension, at the very least, the affidavit should detail the steps taken by the applicant to obtain legal help in order for the Court to assess whether there was any foundation for the assertion, and whether the applicant has an adequate explanation for the delay. 

5. In this case, the failure of the applicant to provide an acceptable explanation for the delay in bringing his application for leave is sufficient reason in itself to refuse the extension of time.  His proposed application for leave to appeal does not, in any event, raise, let alone disclose, any proper legal basis for challenging the correctness of the decision of the FCC. In the circumstances there would be no utility in granting the extension of time.

6. Accordingly the application must be dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.

Associate:

Dated:        14 February 2018