CCD17 v Minister for Immigration and Border Protection
[2018] FCA 1757
•7 November 2018
FEDERAL COURT OF AUSTRALIA
CCD17 v Minister for Immigration and Border Protection [2018] FCA 1757
File number: NSD 421 of 2018 Judge: LOGAN J Date of judgment: 7 November 2018 Catchwords: MIGRATION – application for extension of time within which to seek leave to appeal – whether acceptable explanation for delay – whether reasonable prospects of success – Minister admitted no prejudice – assessment of merits of proposed grounds of appeal. Held – no merits – application dismissed. Legislation: Migration Act 1958 (Cth)
Federal Circuit Court Rules 2001 (Cth) rr 13.03C(1)(c), 16.05(2)(a)
Date of hearing: 7 November 2018 Date of last submissions: 7 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Mr D McLaren of Minter Ellison ORDERS
NSD 421 of 2018 BETWEEN: CCD17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
7 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The application for an extension of time within which to seek leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs, of and incidental to the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised From Transcript)LOGAN J:
The applicants are husband and wife. They are each citizens of the People’s Republic of China. The female applicant came to Australia on 14 March 2014. Her husband arrived a month later on 14 April 2014. On 2 June 2014, the applicants applied under the Migration Act 1958 (Cth) (Act) for that class of visa known as a Protection visa (visa). The female applicant claimed to fear persecution on the basis of a complaint which she had made in respect of official corruption. Her husband’s claim for a visa was derivative in the sense that it depended, for its success, on his wife’s claim for a visa being accepted. He did not advance a claim for a protection on any separate basis.
On 19 March 2015, a delegate of the Minister for Immigration and Border Protection (Minister) refused the visa applications. The applicants then applied to the Administrative Appeals Tribunal (Tribunal) for the review on the merits of the Minister’s delegate’s decision. On 26 April 2015, for reasons given in writing that day, the Tribunal decided to affirm that decision of the Minister’s delegate not to grant protection visas to the applicants. The applicants then applied to the Federal Circuit Court for the judicial review of the Tribunal’s decision. That application was filed on 16 May 2016. That court conducted a callover of pending cases on 7 December 2017. When the applicants’ case was called on that day, there was no appearance by them or on their behalf. As a result, acting under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), their application was dismissed with costs by the court. On 28 December 2017, the applicants filed an application in the Federal Circuit Court for reinstatement of their judicial review application. That court has power under r 16.05(2)(a) of the FCC Rules to vary or set aside a judgment or order after it has been entered if that order or judgment was made in the absence of a party. On 5 March 2018, in reasons for judgment delivered orally that day, the Federal Circuit Court dismissed with costs, the application which the applicants had made for the reinstatement of their judicial review application.
The applicants did not file an application for leave to appeal against the Federal Circuit Court’s order within the prescribed time. The reason for that put forward by the applicants is revealed in an affidavit made by the female applicant. That explanation was not challenged by the Minister upon the hearing of the application today. The explanation given in the affidavit by the female applicant is that she and her husband were away from Sydney, and that they:
[…] only got all the documents sorted today.
What I infer from that, is that the applicants did not, until 21 March 2018, have opportunity to give attention to the order of dismissal made by the Federal Circuit Court. The reasons for judgment of the Federal Circuit Court disclose that the applicants appeared in person on 5 March 2018 at the time when that court dismissed their reinstatement application.
In respect of an application of the present kind, one matter which is always material, is whether or not there is an acceptable explanation given by an applicant for an extension of time for the delay. In turn, it is always relevant to consider the prospective merits as revealed by grounds stated in a draft notice of appeal. That is not to say that an applicant for an extension of time within which to seek leave for appeal must, in any way, prove to demonstration on that application that an appeal must succeed; only that the proposed ground or grounds are sufficiently arguable, taken in conjunction with an explanation for delay, to warrant an extension. Those two considerations are not mutually exclusive. By that I mean that sometimes, even where an explanation for delay is not particularly compelling, the prospective merits of an appeal may be such as to warrant the granting of an extension of time and also leave to appeal. It is also always relevant to take into account any prejudice which may attend the granting of an extension of time and leave to appeal to a respondent.
Turning to these subjects it is understandable, for litigants-in-person in particular, not to appreciate that where a judge delivers reasons for judgment orally, those reasons for judgment are published then and there; they are not published when the judge concerned comes to revise the reasons for judgment delivered orally. In this sense, the applicants were aware on 5 March 2018 that their application had been dismissed, not on and from 21 March 2018. Even so, I can well understand how persons untrained in the law might regard time as running from when written documents came to their attention.
The real issue this afternoon is not the adequacy or otherwise of the explanation given for the delay but rather the prospective merits of any appeal. There is no particular prejudice asserted by the Minister if an extension were granted. Rather, the Minister’s submission is that having regard to what is identified in the draft notice of appeal annexed to the female applicant’s affidavit, there is no merit at all in the proposed appeal. The draft notice of appeal identifies the following as the only ground of appeal:
I don’t satisfy the order from FCC on 5 March 2018.
The female applicant appeared on her own behalf and on behalf of her husband this afternoon. It was so very obvious from her submissions that she genuinely disagreed with the factual evaluation which the Tribunal had made of the merits of the claim which she and her husband had made for a visa. But though she was given an opportunity so to do, she did not identify in oral submissions, any jurisdictional error which the Tribunal allegedly made, much less an error of law by the learned Federal Circuit Court judge in determining whether or not to reinstate her and her husband’s judicial review application. So the position is that neither in the ground of appeal, nor by oral submissions, is there any ground of appeal which would enjoy any prospect of success.
The reasons for judgment of the Federal Circuit Court contain an evaluation of the basis upon which the Tribunal came to make adverse credibility findings in respect of the female applicant’s visa application. It is not necessary to repeat, much less critique, the reasons for judgment of the Federal Circuit Court in that regard. Findings as to credibility are not unexaminable on judicial review, but there has to be revealed legal error in the making of those findings. Sincere disagreement with findings on the merits can sometimes be termed disagreement as to the reasonableness of those findings; but it is not unreasonableness in the jurisdictional error sense.
What follows from what I have said, is that even if I were persuaded that there is an acceptable explanation for the delay in the filing of the application for leave to appeal, and I assume in the applicants’ favour that there is such an explanation, there is just no merit at all disclosed, either in the draft notice of appeal or otherwise, in relation to an appeal against the Federal Circuit Court’s order of dismissal.
That being so, it would be pointless to grant an extension of time. I therefore dismiss the application for an extension of time within which to seek leave to appeal.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 21 November 2018
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