BBR18 v Minister for Home Affairs

[2019] FCA 138

FEDERAL COURT OF AUSTRALIA

BBR18 v Minister for Home Affairs [2019] FCA 138

Appeal from:

BBR18 v Minister for Home Affairs & Anor [2018] FCCA 1934

File number(s):

NSD 1735 of 2018

Judge(s):

WHEELAHAN J

Date of judgment:

14 February 2019

Catchwords:

PRACTICE AND PROCEDURE – application for extension of time to file a notice of appeal from a decision of the Federal Circuit Court – no appearance by or on behalf applicant when application called on for hearing – no properly particularised proposed grounds of appeal – application dismissed – costs liability of applicant’s legal practitioner reserved.

Legislation:

Federal Court of Australia Act 1976 (Cth) s 24(1)(d)

Federal Court Rules 2011 (Cth), r 36.03, r 36.05

Cases cited:

Craig v South Australia (1995) 184 CLR 163

Date of hearing:

14 February 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

16

Counsel for the Applicant:

No appearance for the applicant.

Counsel for the First Respondent:

Mr T Liu

Solicitor for the First Respondent:

Clayton Utz

Solicitor for the Second Respondent:

The second respondent filed a submitting appearance.

ORDERS

NSD 1735 of 2018

BETWEEN:

BBR18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	WHEELAHAN J
DATE OF ORDER:	14 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The application for an extension of time within which to file a notice of appeal is dismissed with costs.

2.The question of the liability of the applicant’s legal practitioner for costs be reserved.

3.Any application by the first respondent in respect of the liability of the applicant’s legal practitioner for costs be filed by 4.00 pm on 28 February 2019

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

EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)

WHEELAHAN J:

Background

1. The applicant is a citizen of Iraq who arrived in Australia in 2013. In January 2017 he made an application for a protection visa which was refused by a delegate of the Minister. The delegate’s decision was treated as a fast track decision, and was referred to the Immigration Assessment Authority for review, pursuant to s 473CA of the Migration Act 1958 (Cth). On 25 January 2018 the Authority decided to affirm the decision of a delegate of the Minister.

2. The applicant then commenced a proceeding in the Federal Circuit Court of Australia seeking judicial review of the decision of the Authority under s 476 of the Act. The Federal Circuit Court heard the applicant’s application, as amended, and on 16 July 2018 dismissed it.

3. A notice of appeal had to be filed within 21 days of the pronouncement of the orders of the Federal Circuit Court: Federal Court Rules 2011 (Cth), r 36.03. That period expired on 6 August 2018.

4. The primary judge’s written reasons were published on 3 September 2018. The applicant’s solicitor, who had appeared for the applicant at the hearing in the Federal Circuit Court, has sworn an affidavit in which he states that upon receiving the primary judge’s written reasons he gave the applicant certain advice, and was then instructed to make an application for an extension of time within which to appeal.

5. An application for an extension of time was filed on 14 September 2018. The application was accompanied by a draft notice of appeal, as required by r 36.05(3)(d). One proposed ground of appeal was identified as follows –

   Jurisdictional Error - The Honourable Federal Circuit Court failed to properly consider the Appellant's contentions as detailed within the amended application, failing to adhere to statutory requirements thereby failing to exercise its jurisdiction and consequently committing a jurisdictional error.

6. By orders of a Registrar of the Court made 19 October 2018 the applicant was ordered to file a draft notice of appeal setting out particularised grounds of appeal within 10 business days. According to the Court file, this has not occurred. Further, the applicant was ordered to file a written outline of submissions no later than 10 business days before the hearing date of the application. This has not occurred either.

7. Counsel for the Minister has prepared written submissions that were filed within time, on 7 February 2019. The position of the Minister in relation to the application for an extension of time, as expressed in those submissions, is that the application should be refused on the basis that the sole ground articulated in the draft notice of appeal does not have sufficient prospects of success to justify an extension of time.

8. The proposed ground of appeal is high-level and appears to be misconceived. An appeal from the Federal Circuit Court to this Court under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) does not require the demonstration of jurisdictional error, which has a narrower application to decisions of inferior courts because the jurisdiction of an inferior court is ordinarily broader than that of administrative decision-makers: Craig v South Australia (1995) 184 CLR 163 at 179-180. Furthermore, it is not clear to me how the primary judge’s written reasons have informed the formulation of the proposed ground of appeal.

9. When the application was called on for hearing today there was no appearance by or on behalf of the applicant. I was provided with a copy of an email of today’s date, sent at 10.19 am addressed to my associate by a person from Aquila Lawyers which had an incorrect email address for my chambers. This explains why my chambers did not receive the email. 

10. That email states as follows.

    Dear Associate,

    I am the lawyer acting for Mr Jacob. I am presently appearing in a hearing, together with Mr Stanton of counsel, for Mr Jacob today at Fairfield Local Court in proceedings before Magistrate Tsavdaridis. These proceedings require the attendance of Mr Jacob.

    The matter has no priority and it is unclear as to what time the proceedings will commence. As I understand, Mr Jacob is/was also required to appear in proceedings before His Honour today.

    Please feel free to contact me on [telephone number] for any further clarification.

    Omar Juweinat

    AQUILA LAWYERS

11. The reference in the email to “Mr Jacob” is a reference to the applicant’s solicitor.

12. Counsel for the first respondent submitted that the application for an extension of time within which to file a notice of appeal to this Court should be refused. 

13. I shall refuse the application for an extension of time having regard to the following features of the case:

    (a)the failure of the applicant to identify arguable grounds of appeal with particularity;

    (b)the failure of the applicant to comply with Court orders relating to filing a particularised draft notice of appeal or an outline of submissions;

    (c)the obscure contents of the email from Aquila Lawyers of today’s date; and

    (d)the fact that the application for an extension of time is of its nature interlocutory.

    Conclusions

14. The application for an extension of time within which to file a notice of appeal is dismissed with costs.

15. The question of the liability of the applicant’s legal practitioner for costs will be reserved.

16. The Court directs that any application by the first respondent in respect of the liability of the applicant’s legal practitioner for costs be filed by 4.00 pm on 28 February 2019.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.

Associate:

Dated:       14 February 2019