ASA16 v Minister for Home Affairs

[2019] FCA 1967

FEDERAL COURT OF AUSTRALIA

ASA16 v Minister for Home Affairs [2019] FCA 1967

Appeal from:	Application for extension of time: ASA16 v Minister for Immigration & Anor [2019] FCCA 689
File number:	NSD 992 of 2019
Judge:	JAGOT  J
Date of judgment:	19 November 2019
Catchwords:	MIGRATION – application for an extension of time to appeal – time for filing and serving notice of appeal –– application dismissed
Legislation:	Federal Court Rules 2011 (Cth) r 36.03
Date of hearing:	19 November 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms A Davyskib of Minter Ellison

ORDERS

NSD 992 of 2019

BETWEEN:

ASA16

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	JAGOT  J
DATE OF ORDER:	19 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The application for an extension of time filed on 25 June 2019 be dismissed.

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

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

REASONS FOR JUDGMENT

JAGOT J:

1. This is an application for an extension of time to file an appeal.  The proposed appeal is against orders made on 26 March 2019 by Judge Dowdy in the Federal Circuit Court of Australia: ASA16 v Minister for Immigration & Anor (2019) FCCA 689. On 26 March 2019 Judge Dowdy made an order as follows:

   The application filed in this Court on 30 March 2016 and the Amended Application filed on 25 January 2017 are both dismissed. 

2. Judge Dowdy’s reasons for judgment shows that the judgment was delivered on 26 March 2019. In addition, the sealed order of the Federal Circuit Court of Australia dated 26 March 2019 shows that the applicant appeared in person at the delivery of the judgment. In accordance with rule 36.03 of the Federal Court Rules 2011 (Cth), as it applied at the relevant time, the applicant was required to file a notice of appeal within 21 days of 26 March 2019, that is, by 16 April 2019. However, the applicant did not file his application until 25 June 2019. For this reason an extension of time is required.

3. The Minister pointed out in his written submissions the relevant factors that should be taken into account when considering whether it is in the interests of justice that an extension of time be granted.  These include the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal. 

4. In an affidavit filed in support of the application, the applicant said that on 14 June 2019 he received the decision of the Honourable Judge Driver to his residential address by post along with an invoice from the second respondent.  He also said that on 18 June 2019 he attended the Registry and was advised that he needed to prepare an extension of time application rather than a notice of appeal. 

5. I am unable to reconcile the applicant’s affidavit with the Court records, which indicate that the applicant received a copy of the judgment of Judge Dowdy on 26 March 2019.  In his oral submissions when asked about his explanation for the delay the applicant said that he did not have the financial resources to obtain the assistance of a lawyer.  As the Minister submitted, a lack of financial resources is not of itself a satisfactory reason for the delay.  The combination of the applicant’s affidavit and his oral submissions does not provide any explanation for the delay in circumstances where the application was filed some 70 days out of time, which is not an insignificant period.  This factor weighs against the granting of the extension of time which is sought.

6. I have also considered the reasons for the decision of the Administrative Appeals Tribunal as well as the reasons for judgment of Judge Dowdy, in addition to the draft notice of appeal, which is annexed to the applicant’s affidavit.  Having considered that material, I accept the submissions for the Minister that the applicant has not identified any arguable error in the decision of Judge Dowdy.  The oral submissions which the applicant made in support of his application also did not identify any such error.  It is apparent that the applicant contests the Tribunal’s assessment of the merits of his claims but that does not amount to the identification of any arguable jurisdictional error in the decision of the Tribunal. 

7. In my view the primary judge comprehensively considered the matters which the applicant raised in support of his application and dismissed the applicant’s contentions.  Further, in my view, the draft notice of appeal does not identify any arguable case of jurisdictional error.  In these circumstances, I consider that it is not in the interests of justice that the applicant be granted the extension of time which is sought.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:       19 November 2019