BVD15 v Minister for Immigration and Border Protection
[2017] FCA 133
•17 February 2017
FEDERAL COURT OF AUSTRALIA
BVD15 v Minister for Immigration and Border Protection [2017] FCA 133
Appeal from: BVD15 v Minister for Immigration and Anor [2016] FCCA 2064 File number(s): NSD 1555 of 2016 Judge(s): GREENWOOD J Date of judgment: 17 February 2017 Date of publication of reasons: 21 February 2017 Catchwords: MIGRATION – consideration of an application for an extension of time and leave to appeal from a judgment of the Federal Circuit Court of Australia published on 11 August 2016 Legislation: Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa), s 36(2A), s 36(2B), s 424AA Cases cited: SZGIZ v MIAC (2013) 212 FCR 235 Date of hearing: 17 February 2017 Date of last submissions: 17 February 2017 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 69 Counsel for the Applicant: The applicant did not appear Solicitor for the First Respondent: Clayton Utz Lawyers ORDERS
NSD 1555 of 2016 BETWEEN: BVD15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
17 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time and leave to appeal filed on 15 September 2016 is dismissed.
2.The applicant pay the costs of the first respondent of and incidental to the application fixed in an amount of $3,200.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
These proceedings are concerned with an application for an extension of time and leave to appeal from orders and a judgment of the Federal Circuit Court of Australia published on 11 August 2016.
The background to the application is this.
On 8 September 2015, the applicant filed an application in the Federal Circuit Court by which he sought judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) by which the Tribunal found that it could not be satisfied for the purposes of s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”) that the applicant is a person in respect of whom there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that the applicant will suffer significant harm. As to the notion of “significant harm” see s 36(2A) and s 36(2B) of the Act.
On 2 June 2016, the Federal Circuit Court dismissed the application for judicial review “on account of the non‑appearance by the applicant”: BVD15 v Minister for Immigration and Anor [2016] FCCA 2064, the primary judge, Judge Driver, at [1].
On 20 June 2016, the applicant filed an application in the Federal Circuit Court by which he sought an order setting aside the dismissal order of 2 June 2016. In effect, the applicant sought reinstatement of the judicial review application of 8 September 2015. The application was supported by an affidavit of the applicant made on 17 June 2016. The applicant explained his failure to attend the “scheduled hearing” on the basis that he had “moved address” and did not receive a letter from his lawyer or the Court about the hearing. The applicant contended before the Federal Circuit Court that he had forgotten to “give his new address to the lawyer and to the Court”: primary judge (“PJ”) at [1]. The applicant also explained that due to his financial problems, his lawyer had ceased to act for him: PJ at [1].
However, the primary judge observed at [3] that the proposition that the applicant failed to attend the scheduled hearing because of a change of address did not “survive scrutiny”. The orders of the primary judge on 2 June 2016 contained an order (Order 5) reciting the applicant’s address for service as notified in the Notice of Address for Service filed on 22 March 2016 is “[X]”. Order 6 recorded that the applicant’s address for service as notified in the application filed on 8 September 2015 and the solicitor’s Notice of Intention to Withdraw, filed on 30 May 2016, is “[Y]”.
The primary judge notes at [4] that the address notified on 22 March 2016 for the applicant is the address at which the applicant continues to live. The applicant confirmed it to be so at the hearing of the reinstatement application on 11 August 2016 before the primary judge. At a directions hearing on 29 April 2016, the proceeding was listed for a “show cause hearing” on 2 June 2016. The applicant’s lawyer sought and obtained an adjournment until 2.15pm on that day. The primary judge notes at [5] the applicant’s concession at the hearing on 11 August 2016 that he had discussed the orders of 29 April 2016 with his lawyer. The applicant contended that he “forgot the new hearing date” and was “expecting some confirmation in writing”.
At [5], the primary judge observes that:
In my view, simple forgetfulness is not an adequate explanation for the applicant’s non‑attendance.
And at [6], the primary judge said this:
I find that the applicant has failed to advance a sufficient explanation for that non‑attendance.
At [7], the primary judge said this:
Even if the applicant had advanced a satisfactory explanation for his non‑attendance on 2 June 2016, I would nevertheless not reinstate the application. This is because, in my opinion, the applicant’s judicial review application fails to disclose an arguable case.
The primary judge then went on to identify the basis for his opinion at [7] of the primary judge’s reasons.
Judgment was given by the primary judge on 11 August 2016 in an ex tempore judgment. The dispositive order made that day was that the reinstatement application filed on 20 June 2016 be dismissed with costs fixed at $2,000.
On 15 September 2016, the applicant filed an application for an extension of time to file a notice of appeal from the judgment of 11 August 2016 and leave to appeal from that interlocutory judgment dismissing the reinstatement application.
In a supporting affidavit, the applicant says this by way of an explanation of the need for an extension of time:
1.I am the applicant and I am seeking justice.
2.I failed to file an appeal with the Federal Court within the required date because I have been waiting a letter from the court and I thought the deadline to appeal was 35 days from the date of judgment of federal circuit court judge.
3.I request that my appeal be valid and given justice.
4.His Honour Driver failed or ignored to find a jurisdictional error committed by the Tribunal Member and I am not satisfied with the judgment.
5.I am a victim of the AAT Member’s purported decision.
The applicant attaches to that affidavit a draft notice of appeal. The grounds the applicant seeks to agitate, by way of appeal, are these:
1.The Federal Circuit Court Judge erred by failing to find that the Tribunal Member made an error of law in that the Tribunal Member failed or ignored to give me natural justice and fairness.
2.I argue that the Tribunal Member has not made a well‑balanced decision by relying on its arbitrary views towards my claims.
3.It is contended that the Tribunal Member erred by overlooking my claims on the issue of my suffering from the Maoists as the Tribunal Member did not want to believe me because the Member appeared to establish disbelief of my creditability and ignored my entire evidence in which my case was taken in breach of the rules of natural justice.
4.I am a victim of the Tribunal Member’s purported decision.
The applicant’s application for an extension of time and leave to appeal was listed for hearing before the Federal Court at not before 10.15am on Friday, 17 February 2017. The applicant was given notice of the hearing date and time by an email sent by the Court to him on 20 December 2016 at 3.09pm to his email address nominated by him in his application for an extension of time and leave to appeal. A further email was sent to the applicant on 15 February 2017 at 10.54am by the Court advising him that the application would be listed for 11.30am on Friday, 17 February 2017 rather than 10.15am.
The applicant failed to appear before the Court at 10.15am and failed to appear before the Court at 11.30am.
After allowing a further 15 minutes to enable the applicant to appear, the Court convened at 11.45am and called the applicant three times outside the Court. There was no appearance by the applicant. Accordingly, the applicant’s application for an extension of time and leave to appeal filed on 15 September 2016 was dismissed with an order that the applicant pay the first respondent’s costs fixed in a particular amount.
The application was dismissed not simply on the procedural basis of the applicant’s failure to appear, but rather on two grounds: first, on the procedural ground of the applicant’s non‑attendance; second, on the merits based on an assessment of the question of whether an extension of time ought to be granted in order to enable the applicant to agitate the grounds of appeal he seeks to advance. In forming a view about those matters, I have sought to identify whether any arguable question of a ground of appeal arises.
It can be seen from the grounds of appeal set out at [15] of these reasons that each ground is essentially content‑free. Ground 1 asserts a denial of natural justice. Ground 2 asserts arbitrary decision‑making by the Tribunal member. Ground 3 asserts that the Tribunal member overlooked the applicant’s claims which were based on a fear of harm from conduct on the part of Maoists. Ground 3 also asserts that there is no basis for the credibility findings and it also asserts that the Tribunal “ignored” his “entire evidence”.
There are no particulars of any of these grounds and no attempt has been made by the applicant to give any content or particulars of them. It therefore falls to the Court to determine whether there is any basis for believing that there is an arguable ground of appeal from the Federal Circuit Court on the footing that the Federal Circuit Court failed to identify an arguable ground of jurisdictional error on the part of the Tribunal.
There is no such error on the part of the primary judge or arguable jurisdictional error on the part of the Tribunal and accordingly, the application was dismissed.
As to the question of whether an arguable ground of appeal arises, the position is this.
The question before the Tribunal for determination was whether the applicant, a Nepalese citizen, is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(aa). That raised the question of whether the Tribunal was satisfied that substantial grounds subsisted for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm: the complementary protection criteria. As to the notion of significant harm, see s 36(2A) and s 36(2B) of the Act.
The applicant made the following claims before the Tribunal.
The applicant contended that at the date of his Protection Visa Application he was a member of the Rastriya Prajatantra Party (“RPP”) and was a supporter of the Nepalese Monarchy. He claimed to be an enemy of the Maoists as a result of his political affiliation with the RPP. He claimed that he had been targeted and harmed by the Maoists. As a result, he claimed to fear future harm. The applicant claimed to fear harm due to his political opinions. The Tribunal at para 14 of its decision extensively identifies the factual matrix framing the claims of the applicant. Some elements of that factual matrix are these.
The applicant claimed to be 35 years of age and born in Malma, Baglung, Nepal. He was (or is) married. He has two sons. He has completed 10 years of education in Nepal and has been a farmer. He claimed to have joined the RPP on 15 January 2006. He is a Hindu. He believed that the RPP would offer him protection. He claimed to be an “ordinary member” of the RPP for two years. He said he attended meetings. He said that after this period he became an “active member” of the RPP. In his written claims he asserted that six of his friends had been killed in October 2006 because of their RPP membership and that after these events he too was threatened by Maoists. In his interview with the delegate (which material was before the Tribunal) the applicant claimed that he had been involved in the 2008 election campaign and had secretly distributed brochures to elderly people in his village encouraging them to vote for the RPP. He asserted that he had been harassed and threatened by Maoists because of his RPP membership.
He claimed that in March 2009 a group of Maoists threatened him at his home, took him into the jungle and told him that he would be killed if he did not join them. He claims that to protect himself he agreed to join them. He claims to have reported this incident to the police in Baglung. They were unable to provide any assistance or protection because his village was “too remote and dangerous”. He then moved to Kathmandu and stayed with an uncle who arranged for his travel to Australia.
In the period between the incident and his removal to Kathmandu, he did not speak to his wife. He did so again only after arriving in Australia. When he did so, his wife told him that a week after he left the village, Maoists came to their home asking for him. She did not know his whereabouts and they left.
In his interview with the delegate he said that his cousin had been killed by Maoists because of her involvement with the RPP.
In discussion with the delegate about the RPP he said that there were three ideological pillars upon which the RPP was founded, namely: “religion, protection and development”. He said that it was formed in 1960 (2007 in the Nepalese calendar). He said that the RPP had never merged with other parties or suffered division.
The Tribunal also notes that the applicant submitted a number of supporting documents to the delegate for consideration which were before the Tribunal. He said that he had received the documents by courier from his uncle in Nepal two weeks before the interview with the delegate. One document, issued on 16 January 2006, bearing the heading “Active Membership Identity Card”, suggested that he was a member of the RPP. The Tribunal notes that the translation suggested that the document was issued on 31 December 2008. The applicant claimed to have signed it in Nepalese (although the delegate considered that the signature on it differed from that of the applicant). The applicant also produced to the delegate a receipt which he claimed had been issued at the same time as the document although the translation suggested that the receipt was issued on 15 January 2006. He also produced to the delegate a letter he said his uncle had obtained in Nepal. The document bears the letterhead of the RPP and is dated 29 May 2010. It suggests that the applicant has been a member of the RPP since 15 January 2006 and has been “actively helping the party from February 2008 until March 2009”: Tribunal decision (“Td”), para 15.
It can be seen from this narrative of the factual matrix that the Tribunal recites in considerable detail the essential factual contentions of the applicant and cross‑references some aspects of those claims to documents produced by the applicant and said to be supportive of the claims.
The Tribunal then turned to independent information concerning aspects of the RPP.
The Tribunal notes that an undated document on the RPP website indicates that the party was formed in 1990 and its ideology is based on nationalism, democracy and liberalism: Td, para 16. It is a monarchist party. It won 20 seats in the 1994 election. It joined the Nepali Congress‑Led Government in September 1995. The governing coalition fell in March 1997 and was replaced (for a period less than seven months) by a coalition led “by Chand” as Prime Minister. That coalition was replaced by another in which “Thapa” was Prime Minister. Chand and nine others were expelled from the RPP in January 1998 for threatening to support a no‑confidence vote against Prime Minister Thapa. Chand formed a new group called RPP (Chand) which did not gain any seats at the May 1999 election. The RPP won 11 seats in that election. The two groups reunified in 2000. In October 2002, Chand was reappointed Prime Minister by the King. He resigned in May 2003 and was replaced by Prime Minister Thapa. Further factionalism occurred. Thapa resigned in May 2004. In March 2005, he formed the Rastriya Janshakti Party (the “RJP”). In January 2006, the RPP’s President, PS Rana “ousted” 10 members of the RPP’s central committee who subsequently formed a group called the Rastriya Prajatantra Party (Nepal) (the “RPP (N)”). In the April 2008 election for the Constituent Assembly, the RPP won eight seats. The RPP (N) won four seats. The RJP won three seats.
All of the matters set out at [30] of these reasons is a reflection of the independent information identified by the Tribunal which it took into account: Td, para 16. The Tribunal also observes at para 17 that according to a document called the “August 2012 ICG report”, the conservative parties which are close to the monarchy “have been of marginal importance since 2008, after Nepal went from being a Hindu republic to a secular republic”. The report suggests that of the various parties, only the RPP (N) has a “coherent political platform” in the sense that it is “clearly monarchist” rather than only royalist and argues for a referendum on republicanism, secularism and federalism: International Crisis Group Report 2012, Nepal’s Constitution (II): The Expanding Political Matrix, Asia Report No 234, 27 August 2012, p 21; Td, para 17.
As to the question of possible political attacks by Maoists on members or supporters of royalist political parties in Nepal since 2011, the Tribunal had regard to Country of Origin information provided by the Department of Immigration and Border Protection.
The information suggested that two reports of Maoist violence against pro‑monarchy supporters in 2011 were identified. No reports of violence by Maoists or others against conservative pro‑monarchy supporters were located in the period from 2011 to date. The information suggests that Maoist violence periodically continued following the signing of the Comprehensive Peace Agreement in 2006 and much of the violence was perpetrated by underground and splinter‑faction Maoist groups and a group called the Unified Communist Party of Nepal (Maoist) (the “UCPN‑M”) until 2012. The Country of Origin information notes intra‑party violence amongst Maoists in 2011. In 2012, the UCPN‑M was removed from the United States list of world‑wide terrorist organisations: South Asia Terrorism Portal 2013, Nepal Assessment 2013, 20 January 2013, para 7; Td, para 20.
As to the two incidents in 2011, one occurred on 26 April 2011 when at least 14 RPP activists were injured in a clash with UCPN‑M cadres. Another occurred on 1 November 2011 when a member of a cadre of RPP members was injured in clashes with UCPN‑M cadres.
As to the claims of the applicant, the Tribunal observes at para 26 that it had “significant credibility issues with substantive aspects of the applicant’s claims”.
The Tribunal identified four topics going to that question.
First, the Tribunal considered there to have been very significant inconsistencies in the applicant’s claims as to the particular political party in which he had been involved and the period of that involvement. The Tribunal, in reliance upon the independent information, was satisfied that the RPP and the RPP‑N are two different political parties, the latter having split from the former in January 2006. The Tribunal observes that up until the hearing of the applicant’s first application before the Tribunal, the applicant had maintained that he was a member of the RPP having joined the RPP in January 2006.
It should be noted at this point that the applicant previously made an application to the Tribunal for a Protection Visa on the ground that he held a well‑founded fear of persecution for a Convention reason, for the purposes of s 36(2)(a). The applicant unsuccessfully sought judicial review of that decision and unsuccessfully appealed to the Full Federal Court from the primary judgment. The Tribunal then considered the applicant’s further application for a Protection Visa under the complementary protection criterion of s 36(2)(aa) of the Act. That application was made in accordance with the observations in the judgment in SZGIZ v MIAC (2013) 212 FCR 235 of 3 July 2013 which contemplated that a further Protection Visa Application could be made by an applicant under s 36(2)(aa) notwithstanding a previous application having been made under s 36(2)(a). The Tribunal decision presently under challenge by the applicant is the Tribunal decision arising out of that further application.
Having noted the contention of the applicant that he joined the RPP in January 2006, the Tribunal notes that when the applicant was asked questions about the leadership of the RPP he was not able to answer those questions correctly. He explained that he was unable to answer those questions correctly because he was in fact a member of the RPP‑N not the RPP. He said that he had been a member of the RPP‑N since 2006. In the Tribunal hearing in relation to the complementary protection considerations he said that he was, in fact, a member of both the RPP from February 2006 and then the RPP‑N commencing in April 2008.
The Tribunal also notes that in evidence before the delegate, the applicant said that the RPP had never merged with other parties or suffered a “split”.
As a consequence of these apparent inconsistencies, the Tribunal put particular information to the applicant in accordance with s 424AA of the Act. The Tribunal regarded the information as relevant because it suggested a “shift in the applicant’s evidence” from saying that he was a member of the RPP to then taking the position that he had been a member of the RPP‑N. The Tribunal was also concerned about the applicant’s evidence that the RPP had never suffered division or a split and had never experienced a merger. This evidence was thought to be inconsistent with the evidence put to the Tribunal (considering the complementary protection criteria) that he had moved from membership of the RPP to membership of the RPP‑N. The Tribunal considered that a “myriad of inconsistencies” existed in the applicant’s evidence as to his involvement in one or more political parties: Td, para 32.
The Tribunal notes that the applicant contended that there was some “misinterpretation” in the earlier interviews and that it was not necessary for him “to know each and every detail”: Td, para 33. The applicant sought additional time to respond in writing. The Tribunal agreed. In his written response, the applicant said that he became a member of the RPP in 2006 and he joined the RPP‑N in 2008 as it became the only political party supporting the Monarchy. The applicant said that he was not consistent in his evidence about these matters “due to forgetfulness and nervousness”. He said that he was unable to identify the correct leader of the RPP‑N at the previous hearing because he was depressed.
The Tribunal did not accept these explanations: Td, para 34.
The Tribunal considered that the inconsistencies were due to the applicant not being truthful in his evidence.
Second, the Tribunal considered that documentary evidence provided by the applicant in support of his claims for a protection visa based on a well‑founded fear of persecution for a Convention reason did not support the claims made under the complementary protection criteria, now made, that he was a member of the RPP but then joined the RPP‑N. The membership card issued on 31 December 2008 suggested that the applicant is a member of the RPP. However, the applicant told the Tribunal that in April 2008 he became a member of the RPP‑N. In addition, the letter said to be from the RPP in 2010 attesting to the applicant’s membership since 2006 and active involvement from February 2008 until March 2009 was not consistent with the applicant’s claim before the Tribunal that he joined the RPP‑N in April 2008.
Third, the Tribunal considered that the applicant had given inconsistent evidence relating to what had happened when he was contacted by Maoists in March 2009.
The applicant told the first Tribunal that Maoists threatened him at his home and took him into the jungle and told him that he would be killed if he did not join them. In evidence given before the present Tribunal, the applicant said that Maoists came to his home and took him to a place “just outside his home to an open area”. The applicant did not assert in the later hearing that he had been taken into the jungle. This inconsistency was also put to the applicant in accordance with the requirements of s 424AA of the Act. The applicant sought additional time to respond in writing. The Tribunal agreed. He did so. He said that Maoists came to his home at midnight and he was taken out of the house and kept in the yard and nobody was allowed to speak: Td, para 40. He said that the Maoists asked him to disown his membership of the RPP‑N and asked him to join them telling him that they would murder him if he refused to obey. The applicant also said that it was true that he was taken to the jungle by a group of Maoists and threatened by them that they would kill him if he refused to support them or give up supporting the Monarchy.
The Tribunal regarded these variations in the versions of the events of March 2009 as a matter of “more minor concern” but nevertheless a concern which “buttresses other issues of concern identified”: Td, para 41.
Fourth, the applicant’s delay of a year from his date of arrival in Australia before seeking protection seemed to the Tribunal inconsistent with the applicant having an actual or well‑founded fear of harm of returning to Nepal having regard to the consideration that the matters giving rise to the fear were the reason the applicant left Nepal. The applicant contended that he was fearful for these reasons from the outset. The applicant explained that because he had a visa he felt that there was no need for him to do anything else in terms of a Protection Visa and he did not know what his options were.
The applicant also contended that he faced particular difficulties because he is from a remote area of Nepal and he would face difficulties on return because he left Nepal on a false passport and does not have an exit stamp in his passport.
The Tribunal summarises each of these four matters already discussed in these reasons at para 44 and concludes at para 45 that the inconsistencies in the applicant’s evidence are “too significant and numerous” to be explained by “nervousness” and an understandable concern about the welfare of his family due to an earthquake in Nepal all of which caused him to be distracted and uncertain about things when giving evidence.
The Tribunal observes that a number of difficulties in the applicant’s evidence pre‑date the earthquake: Td, para 45.
At paras 46 and 47 the Tribunal said this:
46.The Tribunal is not satisfied that the applicant has ever been a member of either the RPP or [the] RPP-N or involved in royalist politics. The Tribunal is not satisfied that the applicant holds a political opinion in support of the royalist cause in Nepal. The Tribunal is not satisfied that the applicant has ever been threatened by Maoists as a result of his political activities or otherwise. The Tribunal is not satisfied that Maoists had threatened the applicant on the basis that he joined the party. The Tribunal is not satisfied that the applicant’s family have had any approach from Maoists since the applicant travelled to Australia.
47.The Tribunal gives little weight to the documents provided by the applicant in support of his claims given the issues raised in the second area of difficulties outlined with the applicant’s evidence, above [that is, the matters discussed under the second topic going to the applicant’s credibility].
At paras 48 and 49, the Tribunal observes that it is not satisfied that there is a real risk of the applicant facing significant harm as a result of past involvement in royalist politics or due to past threats of harm by Maoists or visits by Maoists to the family home of the applicant since he arrived in Australia and nor was the Tribunal satisfied that there is any evidence to establish that the applicant is at any risk of significant harm due to living in a remote area in Nepal.
The Tribunal was not satisfied that the general political and security situation in Nepal is such that the applicant faces a real risk of significant harm.
Nor was the Tribunal satisfied that the lack of an exit stamp on the applicant’s passport would result in his facing harm should he return to Nepal.
Thus, the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the complementary protection criterion.
Before the Federal Circuit Court, the applicant sought judicial review on the following grounds:
(a)the Tribunal had overlooked his claims of being a victim of Maoists due to his political opinions;
(b)the Tribunal did not believe his claim that he first became a member of the RPP and then a member of the RPP‑N;
(c)the Tribunal’s conclusion that the applicant was not threatened by Maoists as a result of his political opinion “is wrong”;
(d)the Tribunal failed to consider the applicant’s claim that he would face punishment from authorities in Nepal on his return because he left Nepal on a false passport;
(e)the applicant’s delay in seeking a Protection Visa does not mean that he did not hold a fear of serious harm on return to Nepal; and
(f)the Tribunal failed to provide the applicant with natural justice and fairness.
Having regard to the above review of the Tribunal’s reasons, there is no basis for the contention at Ground (a). By Ground (b), the applicant challenged the credibility finding. There plainly was a basis for the finding. By Ground (c), the applicant simply challenges the conclusion. The conclusion was open and, in any event, the applicant is simply seeking merits review. There is no basis for the contention at Ground (d). As to Ground (e), the Tribunal did not simply rely upon the applicant’s delay in seeking a protection visa. As to Ground (f), there is no content to the ground and no basis for believing that the applicant was denied natural justice.
The primary judge so found.
The primary judge did not fall into error.
The grounds of appeal before this Court as set out at [15] of these reasons have no prospect of success.
Accordingly, the applicant’s application for an extension of time and leave to appeal filed on 15 September 2016 must be dismissed with costs. Having regard to the affidavit of Mr Thomas Shaw sworn 10 February 2017, costs will be fixed at $3,200.00.
Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these reasons for judgment in support of the orders made on 17 February 2017 are published from Chambers.
I certify that the preceding sixty‑nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 21 February 2017
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