CLG17 v Minister for Home Affairs

[2018] FCA 1247

FEDERAL COURT OF AUSTRALIA

CLG17 v Minister for Home Affairs [2018] FCA 1247

Appeal from:	Application for extension of time:  CLG17 v Minister for Immigration & Anor [2018] FCCA 695
File number:	QUD 224 of 2018
Judge:	RANGIAH J
Date of judgment:	22 August 2018
Catchwords:	MIGRATION – application for extension of time to file a notice of appeal from Federal Circuit Court judgment – refusal of protection visa – whether proposed appeal has prospects of success – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a) and (aa)
Date of hearing:	14 August 2018
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	9
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	Ms L Helsdon of Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

QUD 224 of 2018

BETWEEN:

CLG17

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	RANGIAH J
DATE OF ORDER:	22 AUGUST 2018

THE COURT ORDERS THAT:

1.The application for an extension of time to file a notice of appeal is dismissed.

2.The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

RANGIAH J:

1. This is an application for an extension of time to file a notice of appeal against a judgment of the Federal Circuit Court of Australia delivered on 16 March 2018.  The Federal Circuit Court dismissed the applicant’s application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the first respondent to refuse the applicant the grant of a Protection (Class XA) Visa. 

2. The application was filed seven days out of time.  The applicant is self-represented and his explanation is that he was unaware of the time limit.  In these circumstances, if I were satisfied that the proposed appeal had sufficient merit, I would allow the extension of time. 

3. The applicant is a citizen of Nepal who arrived in Australia on a Student Visa in 2010.  In 2014, he applied for a Protection Visa.  Before the Tribunal, the applicant claimed to have been persecuted in Nepal because of his political opinion.  He claimed to have been a member of a political party and to have been threatened and then kidnapped and beaten because he refused to join a rival Maoist political party.  He claimed that the Maoists continued to send threatening messages to him through his family even after he had left for Australia.  He also claimed that his family had been tortured in Nepal. 

4. The Tribunal found that the applicant’s evidence as to his political activities and the threats and harm to him and to his family was not credible. The Tribunal concluded that it was not satisfied that there was a real chance that the applicant would suffer serious or significant harm if he returned to Nepal. The Tribunal concluded that ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) were not satisfied. Accordingly, it affirmed the decision of the first respondent’s delegate.

5. The applicant applied for review to the Federal Circuit Court.  The primary judge stated that the application did not contain a recognisable ground of review: rather, the grounds merely expressed dissatisfaction with the Tribunal’s decision and its factual findings.  His Honour held that the application was an impermissible attempt to have the Court engage in merits review of the Tribunal’s decision.  His Honour was unable to see any jurisdictional error in the Tribunal’s decision. 

6. The proposed appeal to this Court relies upon the following ground:

   His Honour erred by not finding that the Tribunal made jurisdictional error by failing to consider relevant considerations while assessing whether the Appellant met the relevant application criteria. 

7. The applicant has not filed any written submissions.  He made oral submissions with the assistance of an interpreter.  The applicant’s submissions were largely confined to saying that he was unable to return to the Nepal because his life would be in danger and requesting that he be given further time to find a third country to move to.  Those submissions did not engage with the ground of appeal.  Neither did they otherwise raise any allegation of appellable error on the part of the primary judge or jurisdictional error on the part of the Tribunal. 

8. The applicant’s proposed ground of appeal has not been particularised or developed in submissions.  It is not apparent what the relevant considerations the Tribunal is alleged not to have considered are.  I have been unable to discern any such considerations.  Further, I am unable to identify any other error in the decision of the Tribunal or in the judgment of the Federal Circuit Court. 

9. The applicant’s proposed appeal has no prospect of success.  In these circumstances, the application for an extension of time to file a notice of appeal must be dismissed with costs. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Associate:        

Dated:        22 August 2018