SZVSD v Minister for Immigration and Border Protection

[2016] FCA 1317

FEDERAL COURT OF AUSTRALIA

SZVSD v Minister for Immigration and Border Protection [2016] FCA 1317

Appeal from:

SZVSD v Minister for Immigration & Border Protection [2016] FCCA 1063

File number:

NSD 833 of 2016

Judge:

FARRELL J

Date of judgment:

4 November 2016

Catchwords:

MIGRATION – application for extension of time to appeal a judgment of the Federal Circuit Court of Australia – protection visa – application dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth) s 43(3)(d)

Federal Court Rules 2011 (Cth) r 36.03, item 15.1(b) of Sch 3

Cases cited:

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176

SZVSD v Minister for Immigration & Border Protection [2016] FCCA 1063

Date of hearing:

4 November 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Applicant:

The applicant appeared in person with the assistance of an interpreter

Solicitor for the First Respondent:

Mr M Glavac of Clayton Utz

Counsel for the Second Respondent:

The second respondent submitted save as to costs

ORDERS

NSD 833 of 2016

BETWEEN:

SZVSD

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	4 NOVEMBER 2016

THE COURT ORDERS THAT:

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

2.The applicant is to pay the first respondent’s costs fixed in the sum of $1,756.

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

REASONS FOR JUDGMENT

1. The applicant is a citizen of Ukraine.  He seeks an extension of time to appeal a judgment of the Federal Circuit Court of Australia (FCCA) delivered ex tempore on 5 May 2016.   Edited reasons were published on 17 May 2016: see SZVSD v Minister for Immigration & Border Protection [2016] FCCA 1063. The primary judge dismissed the applicant’s application for a review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 28 October 2014.  The Tribunal affirmed a decision of a delegate of the Minister made on 29 November 2013 to refuse the applicant a Protection (Class XA) Visa.

2. At the hearing on 4 November 2016 I dismissed the application for an extension of time and delivered brief ex tempore reasons.

   APPLICATION TO THIS COURT

3. Rule 36.03 of the Federal Court Rules 2011 (Cth) provides that a notice of appeal in this Court must be filed within 21 days after the date on which the judgment appealed from was pronounced or the order was made. The applicant was therefore required to file his notice of appeal by 26 May 2016. The applicant filed an application for an extension of time on 1 June 2016; six days out of time. No draft notice of appeal was filed.

4. In an affidavit made on 31 May 2016 filed in support of his application the applicant states (as written):

   1.   I am the Appellant and I am authorised to make this affidavit.

   2.   I have been made redundant due to an acute stress and subsequent illnesses. I was plagued by very high pressure and heart condition. I was also diagnosed with clinical depression. That is why I could not make an application for an appeal sooner. I was physically unable to walk and work. Now I am coming to terms with the court’s orders and intend to appeal it.

   3.   The Respondents failed to assess all available country information. If properly assessed it would bring the AAT and The Federal Court to the conclusion that the outcome of the AAT decision would be entirely different. I will submit all relevant information with my amended application.

5. Attached to the affidavit is a letter dated 31 May 2016 from the applicant’s General Practitioner.  The doctor states that he has been treating the applicant since 2009 and that he has attended the doctor’s general practice since 15 November 2010.  The letter states (as written):

   I confirm that due to his health issues he was not able to work for the last six months. He had both physical and mental health deterioration and as reported to me he suffered from insomnia, lack of his ability to concentrate, dizziness, heart palpitations and increased heart rate (up to 120/min).

   For the last two weeks as reported to me to have severe URTI with flu like symptoms and signs.

   His assessment 30/05/2016 revealed rather slow recovery from flu he was/is not able to participate in normal daily activity and he was not fit to work. The patient is ill and needs assistance at home until 6/06/2016.

   Considering his past medical history I believe that his general health was affected by his mental instability (Depression associated with Anxiety) resulted from uncertainty about his place to live and the issues was not resolved since 2008.

6. The applicant appeared at the hearing which was conducted with the assistance of an interpreter.  Although case management orders made by the Registrar allowed the applicant time to file a draft notice of appeal and written submissions, none were filed before the hearing.  The applicant did not seek to present the evidence foreshadowed in paragraph [3] of his supporting affidavit.

7. The Minister filed written submissions and appeared by his representative at the hearing. 

8. The principles which guide the Court in determining an application for an extension of time are well established.  Although not exhaustive of the matters which the Court may consider, the Court has regard to the length of the applicant's delay in lodging the application and the reasons for the delay; any prejudice to the respondent if the extension were granted; and, perhaps most importantly, the merits of the appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J.

   DISPOSITION

9. The Minister’s representative accepted that the Minister was not prejudiced by the applicant’s delay.  Having regard to the circumstances explained by the applicant’s doctor in the letter dated 31 May 2016, the short period of the delay and the fact that the appeal would have been within time had time started to run from the date of the publication of the primary judge’s edited reasons on 17 May 2016, I was satisfied that the explanation for the delay was adequate.

10. In the absence of a draft notice of appeal, the Minister accepted that paragraph [3] of the applicant’s affidavit of 31 May 2016 should be treated as a proposed ground of appeal.  This ground was not raised in the proceedings in the FCCA; and I accepted the Minister’s submission that the applicant required leave to raise it on appeal in this Court. 

11. I was not satisfied that the applicant’s proposed appeal ground had merit since the applicant had not offered any particulars or made any submissions which would suggest that justice demanded that leave be granted to rely on the proposed ground.  Having carefully read the reasons of the Tribunal set out in its Statement of Decision and Reasons dated 28 October 2014 and the reasons of the primary judge, nothing came to my attention which would indicate arguable jurisdictional error by the Tribunal or appellable error by the primary judge.  I therefore dismissed the application for an extension of time.

    COSTS

12. The Minister sought to rely on an affidavit of Christabel Richards-Neville affirmed on 1 November 2016 in relation to an application for costs fixed in the amount of $5,455.24 pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth). The affidavit did not address the maximum amount which might be claimed in accordance with item 15 of Schedule 3 of the Federal Court Rules 2011 (Cth). Item 15.1(b) provides that a party in an application for an extension of time within which to file a migration appeal may claim a short form amount of $1,756. The Minister’s representative did not make any argument that this was not the appropriate amount having regard to the terms of item 15.1(b). I was satisfied that making a fixed costs order in accordance with item 15.1(b) contributes to the efficient and cost effective disposition of this matter and I made the order accordingly.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:        8 November 2016