CJD15 v Minister for Immigration and Border Protection
[2017] FCA 1283
•3 November 2017
FEDERAL COURT OF AUSTRALIA
CJD15 v Minister for Immigration and Border Protection [2017] FCA 1283
Appeal from: CJD15 v Minister for Immigration & Anor [2017] FCCA 769 File number(s): WAD 267 of 2017 Judge(s): SIOPIS J Date of judgment: 3 November 2017 Date of hearing: 31 October 2017 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 22 Counsel for the Appellant: The Appellant appeared in person. Counsel for the First Respondent: Ms T Jonker Solicitor for the First Respondent: Australian Government Solicitor ORDERS
WAD 267 of 2017 BETWEEN: CJD15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
3 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed on the ground that it is incompetent.
2.The appellant is to pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SIOPIS J:
The appellant is a citizen of Sri Lanka who arrived in Australia in July 2012. On 16 January 2013, he applied for a protection visa under the Migration Act 1958 (Cth), claiming to fear persecution from the Sri Lankan Army (SLA) by reason of his Tamil ethnicity, his perceived association with the Liberation Tigers of Tamil Eelam (LTTE) and because he has claimed asylum in Australia.
On 6 March 2014, a delegate of the Minister for Immigration and Border Protection (the Minister) refused to grant the protection visa.
On 26 March 2014, the appellant applied for a review of the delegate’s decision.
On 26 October 2015, the Administrative Appeals Tribunal (the Tribunal) affirmed the decision of the delegate not to grant the appellant a protection visa. The appellant applied to the Federal Circuit Court of Australia for judicial review pursuant to s 476 of the Migration Act.
On 21 April 2017, the Federal Circuit Court dismissed the appellant’s application for judicial review on the basis that the appellant had failed to establish any jurisdictional error by the Tribunal.
On 12 June 2017, the appellant lodged a notice of appeal from the orders of the Federal Circuit Court to this Court; that document was accepted for filing on 14 June 2017. The notice of appeal purports to rely on the following four grounds of appeal:
1.Jurisdictional error by the first and second respondent[s] who fell into [sic] by not applying the law or facts presented by the way of evidence and documents.
2.The primary judge agreed entirely with the decision of the second respondent and thereby fell into jurisdictional error.
3.Procedural error.
4.Not following the laws of natural justice.
On 26 July 2017, the Minister filed a notice of objection as to the competency of the appeal. The Minister’s grounds for objection are, first, that the notice of appeal was not filed within 21 days after the date of the Federal Circuit Court judgment, as required by r 36.03 of the Federal Court Rules 2011 (Cth) (the Rules); and, secondly, that the appellant has not filed any application for an extension of time in which to file the notice of appeal, pursuant to r 36.05 of the Rules.
The Minister’s objection to competency is upheld. As the Minister has contended, the appellant had not applied for, nor obtained, an extension of time within which to file his notice of appeal.
In any event, even if the appellant had made such an application for an extension of time and there was a reasonable explanation for the delay in filing the notice of appeal, the application for the extension of time would have failed. This is because, for the reasons set out below, the appellant’s notice of appeal would not have enjoyed a sufficient prospect of success to warrant the granting of the extension of time.
I deal with each of the grounds of appeal which are set out in [6] above.
GROUND 1
Ground 1 is incompetent because it does not allege any error on the part of the primary judge.
During the hearing, I gave the appellant an opportunity to expand upon the grounds of appeal on which he relied by identifying any error made by the primary judge. The appellant was unable to identify any error by the primary judge. Rather, the appellant’s submissions were directed towards the prevailing conditions in Sri Lanka and the merits of his application for a protection visa.
I have, in any event, had regard to the reasons for decision of the primary judge. The reasons are careful and extensive and deal not only with the grounds of review, contained in the appellant’s application for judicial review before the Federal Circuit Court, but also oral arguments which were raised by the appellant during the hearing before the primary judge.
In my view, the primary judge’s reasons for decision disclose no error.
GROUND 2
The second ground of review contends that the primary judge agreed entirely with the decision of the Tribunal.
The appellant mischaracterises the decision of the primary judge. The primary judge did not have regard to the merits of the Tribunal’s decision, such as to agree entirely with that decision. Rather, the primary judge reviewed the Tribunal’s decision with a view to determining whether any of the grounds of review which were raised by the appellant both in writing and orally disclosed jurisdictional error by the Tribunal. The primary judge found that none of the grounds relied upon by the appellant disclosed jurisdictional error by the Tribunal.
As I have said, in my view, the primary judge did not fall into error in coming to that conclusion.
GROUND 3
The third ground relied upon is “Procedural error”. The appellant did not particularise the procedural error upon which he relied in the notice of appeal. However, insofar as he alleges procedural error before the primary judge, there is no evidence to that effect. Indeed, as I have said, the primary judge recorded the appellant’s contentions which he made both in writing and orally, and dealt thoroughly with each of those contentions. There is no substance in this ground of appeal.
GROUND 4
The fourth ground of appeal complains that the “laws of natural justice” were not followed. Again, the appellant did not during the hearing expand upon the complaint made in this ground of appeal.
My observations in relation to ground 3 apply equally in relation to this ground, and there is no substance in this ground of appeal.
The appellant’s appeal is incompetent and is, accordingly, dismissed.
The appellant is to pay the first respondent’s costs.
I certify that the preceding twenty‑two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 3 November 2017
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