Bis16 v Minister for Immigration and Border Protection
[2018] FCA 701
•11 May 2018
FEDERAL COURT OF AUSTRALIA
BIS16 v Minister for Immigration and Border Protection [2018] FCA 701
Appeal from: Application for extension of time: BIS16 v Minister for Immigration and Border Protection [2017] FCCA 2505 File number(s): NSD 2028 of 2017 Judge(s): O'CALLAGHAN J Date of judgment: 11 May 2018 Catchwords: MIGRATION – application for extension of time to file notice of appeal – where explanation for delay unsatisfactory – where merits of the case bound to fail – application dismissed Legislation: Federal Court Rules 2011 (Cth), r 36.75 Date of hearing: 11 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 9 Counsel for the First Applicant: The First Applicant appeared in person Counsel for the Second Applicant: The Second Applicant did not appear Counsel for the First Respondent: Mr K Eskerie of Sparke Helmore Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 2028 of 2017 BETWEEN: BIS16
First ApplicantBIU16
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
11 MAY 2018
THE COURT ORDERS THAT:
1.The first applicant's application for an extension of time be dismissed.
2.The second applicant's application for an extension of time be dismissed, pursuant to rule 36.75 of the Federal Court Rules 2011 (Cth), in default of appearance.
3.The first applicant pay the costs of the first respondent, to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)O’CALLAGHAN J:
These reasons for judgment were made ex tempore at the hearing on 11 May 2018 and accompany the orders set out above.
This is an application by the first applicant (the applicant) for an extension of time within which to appeal from the judgment and orders of the primary judge: see BIS16 v Minister for Immigration and Border Protection [2017] FCCA 2505. The applicant was required to file and serve written submissions pursuant to the orders made by a registrar of this court on 29 November 2017. No such submissions have been filed. Further, the applicant does not seek to rely upon, and has not filed, any draft notice of appeal.
The second applicant is the wife of the first applicant. It is apparent from an affidavit of Bernadette Marie Rayment sworn 8 May 2018, upon which the first respondent (the Minister) relied, that the second applicant departed Australia on 2 January 2018. The relevant records show that she last held a Bridging Visa Class C, which ceased immediately once she departed Australia. It does not allow a right of return. There is no appearance by the second applicant today. The Minister seeks an order that the application by the second applicant be dismissed pursuant to rule 36.75 of the Federal Court Rules 2011 (Cth) in default of her appearance.
The applicant’s affidavit in support of his application for an extension of time dated 21 November 2017 says, by way of an explanation for the 14 day delay in bringing this application:
My landlord forgot to give me court order until last week. I had to borrow money to pay court cost. There exists jurisdictional error in my case. All statements are true based on my own knowledge.
When the matter was called on for hearing today, I asked the applicant whether he wished to say anything in support of his application. He said that the judge below did not take into account or consider that upon his return to Malaysia he would be subject to persecution.
In my view, the reasons given in the applicant’s affidavit to explain the 14 day delay in filing an appeal are unsatisfactory. However, the principal question to be determined is whether, despite the unsatisfactory nature of those reasons, there is any utility in granting the application for an extension of time. That question involves a consideration of the merits of the case that the applicant would make, were the extension of time to be granted.
As counsel for the Minister pointed out in his oral submissions, it was no part of the primary judge’s role to assess the merits of the question whether the applicant would face persecution or the risk of significant harm were he to return to Malaysia. The primary judge’s role was to determine whether there was a jurisdictional error in the decision of the Administrative Appeals Tribunal (the Tribunal). It follows that the submission that was made by the applicant in court this afternoon is misconceived because it, in substance, seeks a merits review, something that is not the role of this court, nor the role of the Federal Circuit Court of Australia.
Insofar as the applicant’s submission this afternoon can be understood to have referred to the role of the Tribunal, and a contention that the Tribunal failed to consider whether the applicant would face persecution or the risk of significant harm were he to return to Malaysia, that contention is bound to fail. It is clear from the reasons of the Tribunal that formed part of the tender bundle that that very question was the single issue that the Tribunal considered over the course of its 54 paragraph Statement of Decision and Reasons. As paragraph [11] of those reasons recites, the issue in the case “… is the applicant claims to fear harm if he returned to Malaysia on the basis of his Chinese ethnic extraction.”
It is that issue, and the relevant law governing it, that the Tribunal canvassed, considered and made conclusions about over the next 40-odd paragraphs. Having reviewed those reasons, there is no basis for any contention that there was anything irrational or unreasonable about any of the conclusions reached by the Tribunal. In those circumstances, I am bound to dismiss the applicant’s application for an extension of time within which to appeal from the judgment and orders of the primary judge.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate:
Dated: 17 May 2018
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