Bra15 v Minister for Immigration and Border Protection
[2017] FCA 218
•2 March 2017
FEDERAL COURT OF AUSTRALIA
BRA15 v Minister for Immigration and Border Protection [2017] FCA 218
Appeal from: Application for extension of time: BRA15 v Minister for Immigration and Border Protection [2016] FCCA 2147 File number(s): VID 1271 of 2016 Judge(s): MORTIMER J Date of judgment: 2 March 2017 Catchwords: MIGRATION – application for extension of time for appeal from Federal Circuit Court – any error by Federal Circuit Court not material to the outcome of the exercise of its discretion – no arguable legal errors apparent from Tribunal’s reasoning – application refused Legislation: Federal Circuit Court Rules 2001 (Cth)
Federal Court Rules 2011 (Cth)
Migration Act 1958 (Cth) s 424AA
Date of hearing: 2 March 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms P J Mitchell of Clayton Utz Counsel for the Second Respondent: The Second Respondent submits to any order the Court may make save as to costs ORDERS
VID1271 of 2016 BETWEEN: BRA15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
2 MARCH 2017
THE COURT ORDERS THAT:
1.The application for an extension of time is refused.
2.The applicant pay the first respondent’s costs of the application fixed in the sum of $3,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered Ex Tempore and Revised)
MORTIMER J:
BACKGROUND
The applicant is a national of Nepal and entered Australia on a visitor visa in July 2012.
He applied for a protection visa in September 2013, making claims connected with fears of violence from the family of a girl with whom he had had a relationship. His visa application was refused and his review to the Administrative Appeals Tribunal was also unsuccessful. Before the Tribunal, he explained his claims in more detail and they included the claim that his girlfriend’s family were associated with a political group in Nepal. He also claimed to fear harm arising from the aftermath of the earthquakes in Nepal and from the tragic death of his parents in that earthquake. The applicant applied for judicial review of the Tribunal’s decision within the time specified in the Migration Act 1958 (Cth).
THE FEDERAL CIRCUIT COURT DECISION
A directions hearing was scheduled for 3 February 2016, but the applicant did not appear at the hearing and his judicial review application was dismissed in accordance with the Federal Circuit Court Rules 2001 (Cth). The applicant then filed an application to have his judicial review reinstated. The applicant explained to the Court why he did not attend the directions hearing and that explanation is set out in the Federal Circuit Court reasons at paragraph 9. Those reasons included the fact that a friend had been giving him some assistance with his application. In its reasons, the Federal Circuit Court turned to an examination of the authorities in relation to the granting of an extension of time.
It is unclear why the Federal Circuit Court went to those cases when the issue before it was one of reinstatement of an application for non-appearance. Extension of time principles were irrelevant and the Minister’s submissions to the Federal Circuit Court expressly set out the applicable tests and the applicable cases. In substance, however, the approach taken by the Federal Circuit Court was similar to that required by the authorities in the Minister’s submissions.
For that reason, I am prepared to accept any error by the Federal Circuit Court was not material to the outcome of the exercise of its discretion. Nevertheless, an error of that nature by the Federal Circuit Court is, to say the least, undesirable. The Federal Circuit Court found the applicant’s explanation for not attending the directions hearing was unacceptable and it also found his application for judicial review did not disclose an arguable case. In order to appeal that decision to this Court, the applicant needed leave and needed to file his application within 14 days of the date of the Federal Circuit Court orders. He was a few days late in filing that application. If his application for leave to appeal had merit, I would not consider the delay should stand in the way of him being granted leave, since he is unrepresented and English is not his first language.
THE APPLICATION IN THIS COURT
Before me, the applicant gave essentially the same reasons he gave to the Federal Circuit Court for his non-compliance with the court’s processes, especially his dependence on his friend for assistance. The real question is whether the Federal Circuit Court’s refusal to reinstate his application is attended by sufficient doubt to justify this court revisiting it and, in particular, whether the Federal Circuit Court’s assessment of the Tribunal decision is attended by sufficient doubt. I do not consider that the Federal Circuit Court erred in its assessment of the Tribunal decision. As the Federal Circuit Court found, the Tribunal was permitted to discharge its procedural fairness obligations at the hearing pursuant to s 424AA of the Migration Act 1958 (Cth).
The Tribunal’s approach to determining the applicant’s credibility was open to it on the material, and no actual or apprehended bias is arguable. The Tribunal gave the applicant several weeks after the hearing to put in a written explanation of the inconsistencies the Tribunal had identified, but he did not do so. Given the applicant is unrepresented, I have read the Tribunal’s decision carefully for myself. In my opinion, no arguable legal errors are apparent from the Tribunal’s reasoning.
Before me, the applicant told me why his general circumstances meant he could not return to Nepal and that he needed to get a protection visa, including because his parents had died in the earthquake. It is understandable for him to focus on those matters. But as I explained to him, this Court’s function is limited to deciding whether the Federal Circuit Court made any errors in its decision. The application for an extension of time must be refused.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.
Associate:Dated: 2 March 2017
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