BNX16 v Minister for Immigration and Border Protection
[2017] FCA 1039
•4 August 2017
FEDERAL COURT OF AUSTRALIA
BNX16 v Minister for Immigration and Border Protection [2017] FCA 1039
Appeal from: Application for extension of time: BNX16 v Minister for Immigration & Anor [2017] FCCA 614 File number: QUD 119 of 2017 Judge: LOGAN J Date of judgment: 4 August 2017 Catchwords: MIGRATION – application dismissed by primary judge pursuant to r 13.03C of the Federal Circuit Court Rules 2011 (Cth) – application for extension of time and leave to appeal – where delay is in the order of 13 days – whether findings of Tribunal were legally unreasonable – no reasonable prospects of success – extension of time refused – application dismissed Legislation: Migration Act 1958 (Cth)
Federal Circuit Court Rules 2001 (Cth) r 13.03C
Date of hearing: 4 August 2017 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter via telephone link Solicitor for the Respondents: Sparke Helmore ORDERS
QUD 119 of 2017 BETWEEN: BNX16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
4 AUGUST 2017
THE COURT ORDERS THAT:
1.The application for an extension of time in which to appeal be dismissed.
2.The applicant pay the first respondent’s costs of the application, which are fixed in the amount of $1,756.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
The applicant seeks an extension of time within which to appeal against orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 31 January 2017. On that day, the Federal Circuit Court dismissed, with costs, pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth), a judicial review application filed on 23 June 2016. The applicant had made an application to that court for the judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 20 May 2016 by which the Tribunal had refused to grant to the applicant a Protection (Class XD) visa. The foundation for that visa application had been a claimed support by the applicant of the Bangladesh Nationalist Party. That, he said, had led to conflict with his brother, who not was a BNP supporter but rather a supporter of the Awami League. The applicant’s claim, further, was that he had left Bangladesh because he feared he would be killed or harmed by his brother and other supporters of the Awami League.
Following a hearing on 3 May 2016, and as the Tribunal’s reasons disclose, the Tribunal concluded that the applicant was not a credible witness and that there was no well-founded fear of persecution. Before the Federal Circuit Court, the applicant pursued five grounds of review, which are set out at [10] of the reasons for judgment of the learned primary judge. Those reasons for judgment were, as is perfectly permissible, delivered orally on 31 January 2017, the same day as the court made the orders which the applicant wishes to challenge.
It is a feature, nonetheless, of the circumstances in which judgment came to be delivered in the Federal Circuit Court that the applicant was not then present. He had been present at the time when, earlier in the day, the application was called on for hearing at the appointed time. At that time, he claimed that he had sent to the Federal Circuit Court written submissions by email. That court informed him that it had no record of the receipt by email of any such submissions. The applicant informed the primary judge that he had a hard copy of the submissions, but had omitted to bring these to court, because he had forgotten to do that, but did have them in his car, which was at a suburban railway station. His Honour stood the application down for the time which the applicant put to him was necessary in order that he go by train to his car at the railway station and return for the purpose of providing the written submissions.
As it happened, the applicant did not return within that time. After waiting a further 10 minutes, the learned primary judge then determined the application, delivering his reasons for judgment orally. The essence of his Honour’s reasoning in respect of the dismissal was that the Tribunal had made credibility findings which were reasonably open and expressed logically.
The applicant has provided, by affidavit, an explanation for his failure to file within time his notice of appeal. The explanation found in [1] is as follows:
I have appeared before the Federal Circuit Court of Australia on 31 January 2017. The honourable Judge Vasta dismissed my application same day. Due to lack of my English Language, I had a Bengali Interpreter before court to assist me. The interpreter told me I have to apply to the Federal Court of Australia but he did not tell me time limitation to apply to the Federal Court of Australia. Moreover my lawyer sent me the Federal Circuit Court of Australia Order by email and they also advised me to apply to the Federal Court of Australia as soon as possible but they did not inform me the time limitation to apply to the Federal Court of Australia. For this reason, I missed the actual time to apply to the Federal Court of Australia and I request to the Honourable Federal Court of Australia to grant me an extension to apply to the Federal Court of Australia.
The Minister’s submission is that this is not an adequate explanation. Of course, it is the case that the rules of court do not differentiate between those who are legally represented and those who act for themselves. Further, the rules of court set out the practice of the court. It is not for litigants in person in their ignorance to dictate the practice of the court. It is an obligation on the part of anyone who would engage the jurisdiction of the Court to familiarise him or herself with the Court’s practice. That being said, it remains the case that there is a discretion as to whether to grant an extension of time.
The principles in respect of the granting of an extension of time are well settled. Apart from whether there is an acceptable explanation for any delay, it is also relevant to take into account whether the delay has occasioned prejudice either to another party or sometimes also a non-party. It is also relevant to take into account the prospective merits of the proposed appeal. Here, there is no question of prejudice.
The evidence discloses that the applicant did have the benefit of some legal advice in the period between when his Honour delivered his reasons for judgment and when the appeal period would ordinarily have expired. It also discloses that within that period he did have a copy of the reasons for judgment. Unfortunately, those advising him, whilst they stated that any appeal should be lodged “as soon as possible”, did not give precision as to the appeal period. The result is that the notice of appeal was lodged 13 days outside the appeal period.
That looks to me to be quite swift action on the part of a person whose first language is so manifestly not English and who has no legal training. Further, save obviously in cases of extreme delay, there is always an interplay between a length of delay, the explanation given and the prospects of success of a proposed appeal. By that I mean that where there are manifestly good prospects of success, even an explanation which is not compelling for a delay might nonetheless result in the grant of an extension of time in the interests of justice and the reverse also applies.
Because of this, I should set out the proposed grounds of appeal as they appear in the draft notice of appeal:
Grounds of appeal
1.The Administrative Appeals Tribunal’s decision affected by jurisdictional error.
Particulars:
The Administrative appeals tribunal failed to consider a claims or integer of claims and failed to consider whether applicant had a well-founded fear of persecution in the reasonable foreseeable future upon return to his own country of origin. The Tribunal had no jurisdictions to make such decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958. The Tribunal denied the applicant procedural fairness by reaching conclusions that the applicant is not a credible witness and his claims were implausible. The Tribunal member in his decision records did not ask any conventions relation questions whether the applicant had fear of persecution in his own country of residence.
2.The Administrative Appeal Tribunal made findings without evidence. The Administrative Appeals Tribunal rejected the applicant’s evidence before the Tribunal and failed to believe the applicant as a credible witness, such failure constituted a breach of s425 of the Migration Act 1958 (Cth).
Particulars:
The tribunal in her decision records and interview records failed to consider any evidence put by the applicant as credible, believable without any evidence. The honourable member has discredited the evidence just only the applicant’s inability to remember or recall various issues and the dates at the time of hearing.
Regard to these and to the reasons why the Federal Circuit Court judge dismissed the judicial review application disclose no reasonable prospect of success, in my view. That is because the Tribunal’s reasons for disbelieving the applicant are logically expressed and do provide a reasonable basis for not accepting his claim for a protection visa. It is important that a court undertaking judicial review and, in turn, a court exercising appellate jurisdiction in respect of a judicial review proceeding each exercise a principled restraint in relation to the overturning of evaluative factual judgments consigned by the Act to the Tribunal in a review proceeding. The applicant’s disagreement with the Tribunal’s factual evaluation, though I do not doubt it is genuine, is not to be equated with jurisdictional error on the part of the Tribunal. The real difficulty is that there is just no reasonable prospect of success in respect of any subsequent appeal.
For these reasons, the application for an extension of time must be dismissed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 31 August 2017
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