BZQ17 v Minister for Immigration and Border Protection
[2019] FCA 73
•4 February 2019
FEDERAL COURT OF AUSTRALIA
BZQ17 v Minister for Immigration and Border Protection [2019] FCA 73
File number: NSD 1921 of 2018 Judge: JAGOT J Date of judgment: 4 February 2019 Catchwords: MIGRATION – application for extension of time to appeal under r 36.05 of the Federal Court Rules 2011 – whether sufficient explanation for delay – whether the appeal has any prospects of success – application dismissed Legislation: Federal Court Rules 2011 (Cth) r 36.05 Cases cited: BZQ17 & Ors v Minister for Immigration & Anor [2018] FCCA 1445 Date of hearing: 4 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 5 Counsel for the Applicant: The First Applicant appeared in person on behalf of all applicants Solicitor for the First Respondent: Clayton Utz ORDERS
NSD 1921 of 2018 BETWEEN: BZQ17
First Applicant
BZR17
Second Applicant
BZS17
Third Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
4 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for extension of time to appeal be dismissed.
2.The first applicant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
This is an application for an extension of time to appeal against a decision of the Federal Circuit Court in BZQ17 & Ors v Minister for Immigration & Anor [2018] FCCA 1445. The extension of time is required because the application was filed 48 days outside of the prescribed period, rather than within 21 days. The primary judge comprehensively reviewed all of the claims that the applicant had made to the Tribunal and the Tribunal’s reasons and concluded that no jurisdictional error was apparent with the result that the application had to be dismissed.
In so doing, the primary judge gave detailed consideration to the overall medical needs of all of the applicants, and in particular the first applicant, as well as any potential argument that a claim might have been made that the applicants may not be able to access such medical care as is available in Fiji or overseas through some government action. However, the primary judge concluded that any such claim did not arise on the material and that, in truth, the applicants’ case was to the effect that Fiji simply does not have adequate medical facilities to deal with the conditions from which the applicants, and the first applicant in particular, suffer.
So much seems to be confirmed by the draft notice of appeal which accompanied the affidavit of the first applicant where the sole ground of appeal is said to be “continuous medical reviews and pending surgery”. In addition, the first applicant’s oral submissions make it clear that the first applicant’s real concern is with the general standard of medical care available in Fiji with regard to her particular condition. As I explained to the first applicant, in order to grant an extension of time I need to be satisfied that the appeal might have some merit, but I am not so persuaded having reviewed the relevant material.
In circumstances where the explanation for the delay in filing the application for the extension of time is somewhat unclear, and where I am unable to glean from the material that an appeal would have any prospect of success, I consider that I am unable to grant the extension of time sought notwithstanding that all who review this matter have perceived the very difficult situation in which the applicants find themselves, particularly the first applicant given her medical condition. I note that the primary judge in [47] of his reasons said this:
The humanitarian considerations in this case loom large given the dire state of the applicant’s health. There must be a question whether the applicant would be fit to travel, were she required to leave Australia.
The primary judge also referred to the prospect, at least, of Ministerial intervention should the first applicant seek such intervention. That is a matter for the applicant, but there can be no doubt on the material that is available that the first applicant is suffering from a serious health condition, and her concerns about the way in which her condition will be able to be treated in Fiji do raise precisely those humanitarian considerations to which the primary judge referred. Despite this, I do not have a power to act on those humanitarian considerations. Consistent with principle, the only order I can make is to dismiss the application for an extension of time.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 4 February 2019
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