BXN15 v Minister for Immigration and Border Protection

[2017] FCA 1413

FEDERAL COURT OF AUSTRALIA

BXN15 v Minister for Immigration and Border Protection [2017] FCA 1413

Appeal from:	Application for extension of time and leave to appeal: BXN15 v Minister for Immigration and Border Protection and Administrative Appeals Tribunal (Federal Circuit Court of Australia, MLG2146/2015, orders dated 10 May 2017)
File number:	VID 651 of 2017
Judge:	NORTH J
Date of judgment:	17 November 2017
Date of hearing:	17 November 2017
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	8
Counsel for the Applicant:	The applicant appeared in person with assistance of an interpreter.
Counsel for the Respondents:	Ms F Batten
Solicitor for the Respondents:	Clayton Utz

ORDERS

VID 651 of 2017

BETWEEN:

BXN15

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	17 NOVEMBER 2017

THE COURT ORDERS THAT:

1.The application for an extension of time and leave to appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

NORTH J:

1. Before the Court is an application for an extension of time within which to file a notice of appeal from orders made by the Federal Circuit Court on 10 May 2017. 

2. The Federal Circuit Court dismissed an application for review under r 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) because the applicant failed to attend the hearing on 10 May 2017.

3. The application for review related to a decision of the Administrative Appeals Tribunal made on 18 August 2015.  The Tribunal affirmed a decision of the delegate of the first respondent, Minister for Immigration and Border Protection, to refuse the applicant a protection visa.

4. Leave to appeal is required because the orders made on 10 May 2017 were interlocutory orders: s 24(1A) of the Federal Court of Australia Act1976 (Cth).

5. The application for leave to appeal must be filed within 14 days after the date on which the order is made.  The application for leave to appeal, in this case, had to be made by 24 May 2017, but was only made on 19 June 2017. 

6. Whether leave to appeal should be granted depends upon whether in all the circumstance of the decision is attended by sufficient doubt to warrant reconsideration and whether substantial injustice would result from the refusal of leave to appeal.  

7. This application may be determined by reference to that first requirement.  The decision of the Federal Circuit Court to dismiss the appeal was a discretionary decision.  Consequently, it can only be impugned on the grounds of the error of the kind identified in House v R (1936) 55 CLR 499 at 505, namely, that the primary judge acted on a wrong principle, took into account irrelevant matters, failed to take into account relevant matters, made a mistake of fact, or that the decision was unreasonable or plainly unjust.

8. The applicant appeared on the hearing of the application without legal representation, but was assisted by an interpreter in the Sinhalese language.  He said that on 10 May 2017, he was suffering from a back problem.  In support of that contention, he relied upon a medical certificate dated 15 June 2017, which stated that he was unfit to continue his usual occupation from 15 June 2017 to 16 June 2017.  He said that he was unable to obtain a medical certificate from the doctor relating to 10 May 2017 when he attended on 15 June 2017, because the doctor refused to provide a certificate for an earlier date at which he had not seen the applicant.  Obviously, the medical certificate provided does not establish any incapacity of the applicant to attend the hearing on 10 May 2017.  It cannot be said that the Federal Circuit Court erred when it had no material concerning the health of the applicant on 10 May 2017.  No other error was suggested.  It follows that the application for leave to appeal and for an extension of time must be dismissed. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        28 November 2017