Edg17 v Minister for Immigration and Border Protection

[2019] FCA 857

FEDERAL COURT OF AUSTRALIA

EDG17 v Minister for Immigration and Border Protection [2019] FCA 857

Appeal from:	EDG17 v Minister for Immigration & Anor [2018] FCCA 3336
File number:	VID 1 of 2019
Judge:	MIDDLETON J
Date of judgment:	5 June 2019
Legislation:	Federal Court of Australia Act 1976 (Cth) s 25(2B)(ba)
Date of hearing:	5 June 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	14
Counsel for the Applicant:	The Applicant appeared in person by video link with the assistance of an interpreter
Counsel for the First Respondent:	Mr C McDermott
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The second respondent filed a submitting notice

ORDERS

VID 1 of 2019

BETWEEN:

EDG17

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	5 June 2019

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed.

2.The Applicant pay the Minister’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

MIDDLETON J:

1. On 5 June 2019, the Court made orders that the Applicant’s application for an extension of time to seek judicial review of a decision of a judge of the Federal Circuit Court of Australia (the ‘FCCA’) be dismissed with costs.  These are the reasons for those orders.

2. By application dated 2 January 2019, the Applicant sought an extension of time to seek judicial review of a decision of a judge of the FCCA, published as EDG17 v Minister for Immigration & Anor [2018] FCCA 3336. In that decision, the primary judge dismissed an application for judicial review of a decision of the Second Respondent (the ‘Tribunal’) to affirm a decision of a delegate of the First Respondent (the ‘Minister’) not to grant the Applicant a protection visa (the ‘visa’).

3. The Applicant’s migration history (including the Minister’s decision that is the subject of this proceeding) is set out at [4]-[11] of the primary judge’s reasons, and the Tribunal’s decision is appropriately summarised at [12]-[34] of the primary judge’s reasons.  That background does not need repeating here.  In very short compass, neither the Minister nor the Tribunal accepted the Applicant’s claims that he had a subjective fear of returning to his home country of India because of apparent threats made by persons from whom he had borrowed a large sum of money, or based on his past involvement with the Jehovah’s Witness church while living in Australia.

4. In his application for an extension of time, the Applicant identified a number of reasons as to why he had been unable to file a notice of appeal within the required timeframe:

   (1)the Applicant had been in immigration detention, which has made it difficult to find others to assist him;

   (2)English is not the Applicant’s first language and the documents from the Court are complicated and difficult to understand; and

   (3)he had been unable to obtain legal advice despite his attempts to seek assistance from the Centre for Asylum Seekers, Refugees & Detainees in Western Australia and from Victoria Legal Aid.

5. At the hearing of his application, the Applicant applied for an adjournment which I refused.  The Applicant then indicated after some discussion that he did not propose to proceed with his application in view of the fact I had refused him an adjournment.

6. The Applicant applied for an adjournment so that he could appear in person, and produce documents to the Federal Court (not sought to be produced nor produced before the Tribunal or the FCCA).  The Applicant had not raised the desire to produce documents to the Federal Court prior to his appearance today.

7. Prior to the hearing, the Applicant sought an adjournment on the following basis as set out in an affidavit of the Applicant sworn on 30 May 2019 (errors in original):

   3.Sincerely, I request THE FEDERAL COURT OF AUSTRALIA to adjourn or move my hearing from June 6th of 2019 to September of 2019 due to the injury to my right hand caused by SERCO ERT, which has been causing me enormous pain. I was assaulted by SERCO ERT officers on 10th of December of 2018 in Melbourne immigration detention centre. Because of not having a proper treatment and negligence of IHMS my injury remains the same as today. Furthermore, During my last visit to the public hospital in Sydney, I have been told by the doctor that ii might take your finger another 5 to 6 months to heal. Moreover.The doctor also mentioned to me you might end up having arthritis. I have been traumatised because of assault on me by the SERCO Officers who are supposed to look after me legally but not to abuse me. I am under their duty of care assigned to them by The Minister of Immigration and Home Affairs.

   Further, I suffer with depression and take medication for it. This incident has not only made me suffer physically but also affected me psychologically by living in fear of having arthritis.which will affect my rest of life owing to being right handed.

   So, I have been disadvantaged to put my further submission to The court due to the severe pain.

   4.        On top of that, I do not have any legal assistance to help me with my case.

   5.Therefore, I make a humble request to The honourable Judge to postpone my hearing to September. So I could have a fair trail.

8. The Applicant relied upon two medical certificates, which are attached as Annexures A and B to these reasons with appropriate redactions to protect the identity of the Applicant.

9. I refused the adjournment because:

   (1)the Applicant appeared before me by video link and could and did present argument with the aid of an interpreter;

   (2)the medical complaints were not such as to prevent or hinder the Applicant being able to prepare or present his case before the Federal Court;

   (3)the Applicant had adequate opportunity to obtain (if he was able) legal assistance; and

   (4)the Applicant’s desire to produce documents was not particularised, and in any event the Federal Court would not generally accept new evidence not before the Tribunal or the FCCA without a proper basis (which was not articulated by the Applicant).

10. I considered the Applicant was given ample opportunity to a “fair trial” in the Federal Court, and the Court was prepared to hear, consider, and determine his application for an extension of time on the merits in view of my observation that with the aid of a video link and an interpreter, the Applicant could proceed on this basis.

11. The Applicant had no ‘right’ to appear in person before the Court on this application, nor any reason to interfere with the custodial arrangements in place concerning the Applicant.

12. I should mention that to the extent the Applicant complained that similar issues arose in relation to his hearing before the FCCA, those complaints were not raised previously by the Applicant and cannot be pressed now without a proper basis being formulated for ‘new grounds’ of appeal addressing the FCCA process.

13. As the Applicant indicated that he did not wish to proceed with his application in view of the Court’s refusal of an adjournment, pursuant to s 25(2B)(ba) of the Federal Court of Australia Act 1976 (Cth), it was appropriate to dismiss the application.

14. For the reasons set out above, the application for an extension of time is dismissed.  The Applicant should pay the Minister’s costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate: 

Dated:       5 June 2019

Annexure A

Annexure B