Mohammed v Minister for Immigration and Border Protection
[2018] FCA 2036
•19 December 2018
FEDERAL COURT OF AUSTRALIA
Mohammed v Minister for Immigration and Border Protection [2018] FCA 2036
Appeal from: Application for extension of time: Mohammed v Minister for Immigration and Border Protection (No 2) [2018] FCCA 1502 File number: NSD 1392 of 2018 Judge: FLICK J Date of judgment: 19 December 2018 Catchwords:
PRACTICE AND PROCEDURE – application for extension of time – where Applicant failed to appear – whether Applicant provided adequate explanation for the delay – whether proposed Grounds of Appeal have any merit – application refused Legislation: Migration Act 1958 (Cth) ss 359A, 359AA
Federal Court Rules2011 (Cth) r 35.33
Cases cited: Mohammed v Minister for Immigration and Border Protection (No 2) [2018] FCCA 1502 Date of hearing: 21 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Ms B Rayment of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 1392 of 2018 BETWEEN: SIDDIQ MOHAMMED
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FLICK J
DATE OF ORDER:
19 DECEMBER 2018
THE COURT ORDERS THAT:
1.The proceeding is dismissed.
2.The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FLICK J:
The Applicant in the present proceeding, Mr Siddiq Mohammed, applied in July 2015 for a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa. A delegate of the Minister for Immigration and Border Protection rejected that application in October 2015.
In November 2015, Mr Mohammed sought review of that decision by the Administrative Appeals Tribunal (the “Tribunal”). The Tribunal affirmed the delegate’s decision and published reasons for doing so in November 2016.
Mr Mohammed then sought review of the Tribunal’s decision by the Federal Circuit Court of Australia. That Court dismissed the application on 31 May 2018: Mohammed v Minister for Immigration and Border Protection (No 2) [2018] FCCA 1502.
On 7 August 2018, Mr Mohammed filed in this Court an Application for Extension of Time and Leave to Appeal from the decision of the Federal Circuit Court. The Respondent Minister accepted that no leave to appeal is required because the decision of the Federal Circuit Court Judge was a final decision and not an interlocutory decision. But the Respondent Minister opposed the grant of any extension of time within which to appeal.
The Application was listed for hearing at 11.00am on 21 November 2018. Mr Mohammed was not present in Court at that time. The matter was called on for hearing at 11.15am but there was no appearance by the Applicant. The matter was stood down and again called on for hearing at 11.45am. There was still no appearance by Mr Mohammed.
No question arises as to Mr Mohammed not being aware of the time and place of hearing. The Registry of this Court notified him by way of email on 1 October 2018. The solicitors for the Respondent Minister also advised him of the time and place of the hearing by way of a letter dated 7 November 2018. That letter also advised Mr Mohammed that if he failed to appear the Respondent Minister would seek an order that the matter be dismissed and an order for costs.
The Respondent Minister appeared by way of his solicitor. Upon the failure of Mr Mohammed to appear, the foreshadowed applications were made.
Those applications are to be acceded to.
The source of the power to dismiss an application for an extension of time, however, remained uncertain.
Reliance was placed on behalf of the Respondent Minister upon r 35.33 of the Federal Court Rules2011 (Cth). That rule provides (in relevant part) as follows:
Absence of a party
(1)If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, any other party may apply to the Court for an order that:
(a) if the absent party is the applicant:
(i) the application be dismissed; or
(ii) the application be adjourned; or
(iii) the hearing proceed only if specified steps are taken; or
(b)…
(2)If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:
(a) setting aside or varying the order; and
(b) for the further conduct of the proceeding.
But this rule, it will be noted, applies to an application made under rr 35.12 or 35.14. The former rule refers to applications for leave to appeal; the latter rule refers to applications “for an extension of time to seek leave to appeal”. The present application is neither. It is an application for an extension of time in which to appeal; no leave to appeal is required. It is an application within the meaning of s 25(2)(b) of the Federal Court of Australia Act 1976 (Cth), namely an application “for an extension of time within which to institute an appeal”. The present application, accordingly, is an application under r 36.05 of the Federal Court Rules seeking an extension of time within which to appeal. An application for an extension of time in which to appeal may be made to a single Judge of this Court: r 36.11. Rule 36.11(2)(h) permits a single Judge to dismiss an appeal “for want of prosecution”. But that rule applies only in respect to “an appeal” rather than an application for an extension of time within which to appeal. Other than r 36.11(2)(h), however, there does not appear to be an express rule comparable to r 35.33 in respect to the dismissal of an application for an extension of time within which to appeal where the applicant fails to appear.
Whether the proceeding is to be dismissed pursuant to r 35.33 of the Federal Court Rules (as the Respondent Minister contends it should be) or whether the proceeding is resolved in the absence of Mr Mohammed, the result is the same. The proceeding is to be dismissed. Mr Mohammed has failed to appear and failed to prosecute his application for an extension of time within which to appeal and has failed in his proposed Grounds of Appeal to identify any appellable error.
There is no reason why any discretion to dismiss the proceeding should not be exercised in favour of the Respondent Minister and no reason why the proceeding should be adjourned. No explanation was given as to why Mr Mohammed failed to appear at the hearing. He had, after all, been advised by the Court as to the date and time of the hearing and reminded more recently of the hearing by the Respondent Minister.
Even if the proceeding were not to be dismissed by reason of Mr Mohammed’s failure to appear, the fact was that his application for an extension of time proceeded in his absence and his proposed Grounds of Appeal were considered. No reason emerged as to why an extension of time in which to appeal would have been granted given:
·the absence of any satisfactory explanation for the failure to commence his appeal within time; and
·the absence of any merit in the proposed Grounds of Appeal.
The delay in filing & the explanation provided
The Application was filed some 47 days out of time and there is no real explanation for the delay. The affidavit filed in support of the Application simply states (without alteration):
9.I was not able to find a lawyer to represent me or understand the way to deal with the appeal process to the Federal Court of Australia.
10.I also had severe back problem that made me medically unfit.
11.I also having financial issues that I am unable to meet the expensive court filing fees and no one advised me on how to resolve all the basic problem.
In respect to this explanation, it may be noted that:
·no details are set forth as to what steps were undertaken with a view to finding “a lawyer to represent” the Applicant or when those steps were undertaken;
·the evidence in support of the “severe back problem” is to be found in hospital records from a hospital in Hyderabad in India and dated March 2017 and a medical certificate from a doctor in Auburn, New South Wales stating that as at May 2018 Mr Mohammed had “severe back pain which leads to depression” and certified him as being “unfit for any studies or normal duties” for the “next two weeks”. The medical certificate is contemporaneous with the date of the decision of the Federal Circuit Court but provides no real exposition of Mr Mohammed’s medical condition for anything other than a two weeks period; and
·there is no detail to support the assertion of “financial issues”.
In such circumstances, the absence of explanation for the delay would have assumed some relevance if consideration was to be given to extending time. But it was the absence of merit in the proposed Grounds of Appeal which dictates the rejection of the application for an extension of time.
The absence of merit in the proposed Grounds of Appeal
Those proposed Grounds of Appeal are without merit.
There are five proposed Grounds, which assert:
·error on the part of the primary Judge in not concluding that the “Respondents did not make jurisdictional error by failing to exercise jurisdiction”;
·a failure on the part of the Tribunal to comply with s 359A of the Migration Act 1958 (Cth);
·a failure on the part of the Tribunal to comply with s 359AA of the Migration Act;
·a failure on the part of the Tribunal to “take into account relevant consideration”; and
·a denial of procedural fairness by the Tribunal.
Proposed Grounds 2 to 5 substantially repeat the Grounds of Review relied upon before the primary Judge. If the fact that these proposed Grounds do not assert any appellable error on the part of the primary Judge be left to one side, the manner in which the primary Judge resolved the comparable grounds of review does not expose any self-evident error. Sections 359A and 359AA of the Migration Act both refer to “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. In resolving the first Ground of Review (being Ground 2 of the proposed Grounds of Appeal), the primary Judge relevantly concluded as follows (without alteration):
[22] The particulars to ground 1 identify four items which the ground claims constitute information the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The items identified in paragraphs (a) and (c) of the particulars are said to be the “concerns” the Tribunal recorded as having raised with the applicant, in relation to the evidence identified in those paragraphs; and the item identified in paragraph (b) is “doubts” the Tribunal recorded as having raised with the applicant. The item in paragraph (d) of the particulars is the Tribunal’s conclusion that the applicant’s current enrolment would have limited value in relation to increasing his employment prospects in his home country.
[23] The items identified in paragraphs (a), (b) and (c) of the particulars to ground 1 are either subjective appraisals or thought processes of the Tribunal, and the item identified in paragraph (d) of the particulars is a determination. It has been held, however, that “information”, as used in section 424A of the Act (which is identical to section 359A of the Act) “does not encompass the tribunal’s subjective appraisals, thought processes or determinations.” That is a quote from the judgment of Justices Finn and Stone and in Minister for Immigration & Multicultural and Indigenous Affairs v VAF [[2004] FCAFC 123 at [24], (2004) 236 FCR 549 at 555], which were words included in a passage set out, with the approval of the High Court, in SZBYR v Minister for Immigration and Citizenship [[2007] HCA 26 at [18], (2007) 96 ALD 1 at 8 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ]. Thus, none of the items identified in paragraphs (a), (b), (c) or (d) of the particulars to ground 1 is “information” to which s.359AA or s.359A of the Act applied. That means the Tribunal was not required to give to the applicant clear particulars of those items.
(Footnotes omitted.)
The second Ground of Review (being the third proposed Ground of Appeal) failed for similar reasons: [2018] FCCA 1502 at [26] to [27]. The third Ground of Review (being the fourth proposed Ground of Appeal) was rejected because (inter alia) there was no failure on the part of the Tribunal to consider any “relevant consideration”: [2018] FCCA 1502 at [28] to [30]. The final Ground of Review (being the fifth proposed Ground of Appeal), namely the allegation as to a denial of procedural fairness, was rejected by the primary Judge upon the bases (inter alia) that it largely overlapped earlier Grounds of Review: [2018] FCCA 1502 at [31] to [33]. These reasons and conclusions of the primary Judge disclose no self-evident error.
The proposed Grounds of Appeal, with respect, disclose no self-evident merit so as to justify an extension of time being granted in order for one or other of the Grounds to be probed in any greater detail.
Even had a satisfactory explanation for the delay in commencing the proceeding in this Court been forthcoming, the absence of any reason to question the conclusions of the primary Judge would of itself have been sufficient to refuse the extension of time sought.
CONCLUSIONS
The proceeding should be dismissed by reason of the failure on the part of Mr Mohammed to appear. There is no discretionary reason why the proceeding should not be dismissed.
Even had the proceeding not been dismissed for his want of appearance, the application for an extension of time would have been refused. It was an application not supported by a satisfactory explanation for the delay and the proposed Grounds of Appeal are without any merit.
There is no reason why costs should not follow the event.
THE ORDERS OF THE COURT ARE:
1.The proceeding is dismissed.
2.The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 19 December 2018
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