Egv17 v Minister for Immigration and Border Protection
[2018] FCA 1941
•29 November 2018
FEDERAL COURT OF AUSTRALIA
EGV17 v Minister for Immigration and Border Protection [2018] FCA 1941
Appeal from: Application for extension of time: EGV17 v Minister for Immigration & Anor [2018] FCCA 1697 File number: NSD 1403 of 2018 Judge: MCKERRACHER J Date of judgment: 29 November 2018 Date of publication of reasons: 3 December 2018 Catchwords: MIGRATION – protection visa – application for extension of time to seek leave to appeal the decision of the Federal Circuit Court of Australia – application for adjournment refused – insufficient merit in the ground proposed to be advanced
Held: application refused
Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A)
Migration Act 1958 (Cth) s 36(2)(a)
Federal Court Rules 2011 (Cth) r 35.13(a)
Federal Circuit Court Rules 2001 (Cth) rr 44.12(1)(a), 44.12(2)
Date of hearing: 29 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: Mr T Coxall Solicitor for the Applicant: Prominent Lawyers Counsel for the First Respondent: Ms D Watson Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to costs ORDERS
NSD 1403 of 2018 BETWEEN: EGV17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
29 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The application for an extension of time within which to seek leave to appeal be refused.
2.The applicant pay the first respondent’s costs, to be assessed 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 THE TRANSCRIPTMCKERRACHER J:
INTRODUCTION
The applicant applies for an extension of time and leave to appeal brought under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in relation to an interlocutory decision of the Federal Circuit Court of Australia to dismiss the application in that Court pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCR): EGV17 v Minister for Immigration & Anor [2018] FCCA 1697. The judgment was delivered on 27 June 2018 and the application to this Court was lodged on 8 August 2018, some six weeks later.
BACKGROUND
The applicant is a Jordanian citizen, born on 15 May 1996. He arrived in Australia in 2015 on a visitor visa and, on 29 June 2015, lodged an application for a protection visa.
As the primary judge explained, the applicant’s claims for protection arose from what was described as a ‘romantic attachment’ he had with a single woman from a family who belonged to a religiously conservative tribe in Jordan. On 16 October 2014, the applicant claimed he was attacked by this woman’s brother. He claimed he was later threatened with death by family members and feared being killed should he return to Jordan.
On 17 March 2016, a delegate of the first respondent, the Minister for Immigration and Border Protection, refused the application. On 12 April 2016, the applicant applied for review of the delegate’s decision to the second respondent, the Administrative Appeals Tribunal. On 7 August 2017, the applicant attended at a hearing before the Tribunal where he made a new claim, namely that he had also been threatened by three people who were armed with a gun. It was this incident which prompted the applicant to leave Jordan.
FINDINGS MADE BY THE TRIBUNAL
The findings made by the Tribunal are summarised in the decision of the primary judge (at [9]-[16]). In brief, the Tribunal found the applicant’s evidence regarding his claims ‘to wholly lack credibility’. The Tribunal did not find the applicant to be a ‘reliable, credible or truthful witness’ and considered that he had ‘fabricated his entire claim and lied under oath in order to be granted a protection visa’.
Accordingly, the Tribunal found the applicant’s fear of persecution was not well-founded and that he did not meet the refugee criterion set out under s 36(2)(a) of the Migration Act 1958 (Cth). For similar reasons, the Tribunal was not satisfied that the applicant met the complementary protection criterion under s 36(2)(aa) of the Migration Act.
APPLICATION TO THE FEDERAL CIRCUIT COURT
On 22 September 2017, the applicant applied for review of the Tribunal’s decision to the Federal Circuit Court. The grounds relied upon are set out in the decision of the primary judge (at [17]).
The applicant appeared before the Federal Circuit Court at the show-cause hearing. At the conclusion of the hearing, the primary judge gave extempore reasons for judgment and made orders dismissing the application pursuant to r 44.12(1)(a) of the FCCR.
BEFORE THIS COURT
The application before this Court was listed for hearing on this date on 26 September 2018 and the applicant has instructed solicitors to assist him and those solicitors came on to the record.
However, I was handed a copy of an unfiled affidavit shortly before the Court convened indicating that it has not been possible for the solicitors to get in touch with the applicant at all in order to obtain instructions and that he has not paid their fees. I am told that, on that basis, it was not proposed the solicitors would continue to act. Mr Coxall, who has appeared as a courtesy to the Court, but who does not have the carriage of the matter, has sought an adjournment in view of the circumstances regarding an absence of any instructions.
The adjournment application is opposed by the solicitor for the Minister in light of the fact that the matter had been set down in September and there had been ample opportunity for the applicant to instruct his solicitors and to organise payment of the solicitors’ retainer. In addition to that, for the reasons outlined in the Minister’s written submissions, there is no evidentiary or foundational basis on record for the ground of appeal which the applicant would advance if leave were granted for him to advance a new ground of appeal out of time. In light of all those factors, the Minister opposed the adjournment. For the same reasons, I am not satisfied there is any good basis for the adjournment and decline it.
Turning to the present application, as the order made by the Federal Circuit Court is interlocutory (see r 44.12(2) of the FCCR), it is necessary for the applicant to apply for leave to appeal pursuant to s 24(1A) of the FCA Act within 14 days after judgment was given: r 35.13(a) of the Federal Court Rules 2011 (Cth). The applicant did not do so. As stated above, the application for an extension of time and leave to appeal was filed on 8 August 2018, 6 weeks after the date judgment was pronounced and the orders made.
The applicant filed an affidavit in support of his application. In it he states that he was not aware that ‘there was 21 days time limit for lodging this appeal’ until he first saw his lawyers on 30 July 2018.
It is unnecessary to cite authority for the well-established rule that, in the exercise of the Court’s discretion to extend the time limit within which to file a notice of appeal, relevant matters, while not exhaustive, which may be taken into account include the following:
(1)whether there is any prejudice to the Minster;
(2)whether there is any reasonable and adequate explanation for the delay; and
(3)whether the proposed grounds of appeal have merit or have reasonable prospects of success.
The Minister accepts in this case there is no specific prejudice. While the delay is not extensive, it is unnecessary to focus on the amount of the delay, or the reason for the delay, as it is sufficient to address the draft ground of appeal itself.
There is a single ground advanced in the draft Notice of Appeal, namely that the ‘Federal Circuit Court made an error in considering the appellant’s case in its entirety, including medical reasons’. No further particulars are given. No submissions, written or oral, are before the Court in support of the ground.
The proposed ground does not appear to relate to any circumstance arising from either the decision of the Tribunal or the judgment of the Federal Circuit Court below. There was no issue arising concerning any ‘medical reasons’ alluded to on any occasion, nor has the applicant complied with the directions requiring him to file submissions 10 business days prior to this hearing. So, in the absence of any explanation as to what this ground contends it is, at present, incomprehensible.
The findings of the primary judge were clearly open on the evidence before the Court. There was no error in the ultimate finding made, namely, that there was no jurisdictional error in the decision made by the Tribunal on the grounds advanced by the applicant. Nor is there any jurisdictional error disclosed in the reasoning of the Tribunal.
CONCLUSION
In all those circumstances, the application for an extension of time within which to seek leave to appeal will be refused with costs. I order accordingly.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 3 December 2018
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