Bot18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCA 583

FEDERAL COURT OF AUSTRALIA

BOT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 583

Appeal from:	Application for extension of time: BOT18 v Minister for Immigration & Anor [2019] FCCA 2793
File number:	NSD 1772 of 2019
Judgment of:	NICHOLAS J
Date of judgment:	31 May 2021
Catchwords:	MIGRATION – application for extension of time to file appeal from decision of the Federal Circuit Court of Australia – where proposed appeal has no prospects of success – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 5J(1)(a), 426A(1A)(b), 426A(1B)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	7
Date of hearing:	31 May 2021
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms E Warner Knight of Australian Government Solicitor
Counsel for the Second Respondent:	The second respondent submitted save as to costs

ORDERS

NSD 1772 of 2019

BETWEEN:

BOT18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	NICHOLAS J
DATE OF ORDER:	31 MAY 2021

THE COURT ORDERS THAT:

1.The application for an extension of time filed 30 October 2019 be dismissed.

2.The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

(Revised from transcript)

NICHOLAS J:

1. Before me is an application for an extension of time in which to appeal a judgment of the Federal Circuit Court of Australia dated 1 October 2019 dismissing an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 1 March 2018.  By that decision, the Tribunal confirmed its earlier decision to dismiss an application made by the applicant to review a decision of a Delegate of the first respondent refusing to grant the applicant a protection visa.  The application for an extension of time was filed on 30 October 2019 which is one day outside the time within which an appeal could be filed as of right.

2. The applicant is a citizen of Malaysia who arrived in Australia on 4 May 2015 as a holder of an Electronic Travel Authority (Subclass 601). He subsequently lodged an application for a protection visa claiming to fear harm from loan sharks if he was returned to Malaysia because he cannot repay money he borrowed. The Delegate was not satisfied that the applicant feared harm for any reason referred to in s 5J(1)(a) of the Migration Act 1958 (Cth) (“the Act”) and the Delegate refused the applicant’s application for a protection visa on that basis.

3. On 15 April 2017 the applicant sought review of the Delegate’s decision.  He was invited to attend a hearing before the Tribunal on 2 February 2018 at which he failed to appear.  The primary judge’s reasons outline, in some detail, the steps taken by the Tribunal to notify the applicant of the hearing. 

4. In light of the applicant’s non-appearance at the hearing, the Tribunal dismissed the applicant’s application pursuant to s 426A(1A)(b) of the Act. As the primary judge noted, the applicant did not seek reinstatement of his application under s 426A(1B) of the Act, nor did he make any contact with the Tribunal in relation to his non-appearance at the hearing. On 1 March 2018 the Tribunal confirmed its earlier decision.

5. The applicant appeared in person before the primary judge but, based on my reading of the primary judge’s reasons, there were no meaningful arguments advanced by the applicant in support of his application for review of the Tribunal’s decision.  The primary judge held that the applicant had failed to demonstrate the Tribunal’s decision was affected by jurisdictional error. 

6. The applicant appeared at the hearing of the present application on his own behalf assisted by an interpreter.  When invited to speak in support of his application for an extension, he referred to what he alleged was the absence of notice to him in relation to the original hearing before the Tribunal but did not advance any arguments as to why the primary judge’s decision was affected by error.  The affidavit made by the applicant in support of his application for an extension of time does not annex any proposed notice of appeal.  Paragraph 3 of the affidavit merely asserts that “[t]here exist [sic] procedural error and jurisdictional error”.  The precise error or errors relied upon by the applicant were not identified at the hearing of the present application. 

7. In my view, there is no reason to doubt the correctness of the primary judge’s finding that the Tribunal’s decision was not affected by jurisdictional error and the proposed appeal has no prospects of success.  On that basis, the application for an extension of time will be dismissed.  The applicant must pay the first respondent’s costs.

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

Associate:

Dated:       3 June 2021