CUH17 v Minister for Immigration and Border Protection

[2018] FCA 1699

FEDERAL COURT OF AUSTRALIA

CUH17 v Minister for Immigration and Border Protection [2018] FCA 1699

Appeal from:	Application for extension of time: CUH17 v Minister for Immigration & Anor [2018] FCCA 1337
File number:	QUD 485 of 2018
Judge:	ALLSOP CJ
Date of judgment:	6 November 2018
Date of hearing:	6 November 2018
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Counsel for the Respondents:	E Hoiberg
Solicitor for the Respondents:	Sparke Helmore

ORDERS

QUD 485 of 2018

BETWEEN:

CUH17

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	6 NOVEMBER 2018

THE COURT ORDERS THAT:

1.On the conditions in these orders, the hearing be vacated and stood over to a date to be fixed for judgment or further hearing.

2.On or before 7 December 2018, the applicant file and serve written submissions and any material in support of his draft notice of appeal, setting out why the Federal Circuit Court was wrong in its decision.

3.If no material is filed, or if the material filed does not in the Chief Justice’s view, raise any need for a response by the Minister, the matter will proceed to judgment on the papers.

4.If material is filed, and the Chief Justice considers that the Minister should answer any aspect of it, the chambers of the Chief Justice will communicate with the parties concerning the nature of that response.

5.On the condition that no access will be granted to any party without leave from the Court, the letter of Dr. Asha Sadasivan dated 29 October 2018 be uploaded onto the electronic court file as Exhibit A.

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

REASONS FOR JUDGMENT
(Revised from the transcript)

ALLSOP CJ:

1. The applicant seeks an extension of time to file and serve a notice of appeal against the decision of the Federal Circuit Court of Australia.  That decision of the Federal Circuit Court dismissed an application for judicial review to set aside a decision of the Immigration Assessment Authority.  The decision of the Immigration Assessment Authority was made on 26 May 2017.  The decision of the Federal Circuit Court was handed down on 24 May 2018.  The applicant appeared in person before the Federal Circuit Court. 

2. The applicant has filed an affidavit which I have read in these proceedings, explaining his delay in filing his notice of appeal.  The applicant had legal assistance in drafting a draft notice of appeal against the decision of the Federal Circuit Court, but no submissions have been filed to support that draft notice of appeal by explaining why that decision was wrong.

3. The applicant applied for an adjournment today.  In support of that application, he provided a doctor’s certificate dated 29 October 2018.  In that doctor’s certificate, it is stated that, from some time after March 2018, the applicant has been suffering from anxiety, for which he is being medicated.  The applicant also said from the bar table, which I am prepared to accept for the purposes of this application, that he has had some personal difficulties since August this year.

4. On 6 August 2018, Registrar McCormick made directions that clearly identified the importance of the written submissions about the appeal, were an extension of time to be granted.  I repeated that importance today to the applicant.  I have read the submissions of counsel for the first respondent, and if the applicant wishes to have the Court make an order for an extension of time, he will have to provide not only an explanation for the delay, but also reasons as to why the Federal Circuit Court was wrong.

5. The grounds for the adjournment on the ground of illness are weak.  The applicant has apparently previously asked for an adjournment from the Minister in order to obtain legal advice.  In circumstances where the applicant is plainly not in a position to assist the Court with any submissions today, the choices before me are the following:  dismiss the application for an extension of time because of a lack of any argument at all as to why the Federal Circuit Court judge was wrong, or comply with the applicant’s request and give him an adjournment. 

6. I am not prepared simply to adjourn this hearing to another day, requiring the Minister to brief counsel and solicitors to appear once again.

7. I am, however, prepared to do the following. I will give the applicant until Friday 7 December 2018 to file and serve written submissions or any other material in support of his application.  If material is filed by that day, I will examine it.  If I think it raises issues for the Minister to answer, my chambers will communicate with the parties, seeking a response from the Minister.  If I think that the material does not raise material for the Minister to answer, I will deal with the matter thereafter on the papers.  If no material is filed, I will thereafter deal with the matter on the papers.

8. I have already formally read the affidavit of the applicant in support of the application and I will have placed on the court file the letter from the applicant’s doctor, which will be marked as exhibit A. However, I will make an order that no access be given to it to any party without the leave of the Court, given its personal nature.

9. At my request today, the applicant was given another copy of the first respondent’s submissions.  I indicated to the applicant today the wisdom on his part of having those submissions translated and taking account of them in any submissions he makes on or before 7 December 2018.

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

Associate:

Dated:        7 November 2018