FEDERAL COURT OF AUSTRALIA

BZACY v Minister for Immigration and Border Protection [2014] FCA 10

THE COURT:

1.    NOTES the undertaking given by Counsel for the applicant to the Court to pay any fees that may be due to the Court by reason of the filing of the documents referred to in par 2 below.

2.    GRANTS leave to the applicant to file in Court the document styled Interlocutory Application in Appeal dated 21 January 2014 and the affidavit of the applicant affirmed on 21 January 2014.

3.    ORDERS that the said Interlocutory Application be dismissed.

4.    ORDERS that the applicant pay the first respondent’s costs of and incidental to that Application.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1        The applicant claims to be a refugee entitled to protection as such. For some little time, until very recently, he lived in the community while his claims were being dealt with by the Department of Immigration and Border Protection (as the relevant department of State is now known (the Department)) and the courts. During that period, the applicant held a bridging visa.

2        On or about 10 January 2014, the Minister for Immigration and Border Protection (the Minister), who is the first respondent in this proceeding, cancelled the applicant’s bridging visa. On 10 January 2014, the applicant was detained by officers of the Department and conveyed to the Brisbane Immigration Transit Accommodation at Pinkenba, which is located on the outskirts of Brisbane, Qld. Soon after being detained, the applicant was told that he would be deported, probably on Monday, 20 January 2014.

3        Today, he has been taken to Brisbane International Airport in order to be deported. I have been told that he is scheduled to board a flight for Colombo, Sri Lanka, at 12.50 pm (Australian Eastern Standard Time) today and that the flight is scheduled to depart at 1.20 pm AEST. It is now 12.40 pm AEST.

4        Shortly before 11.00 am AEST, that is, about 1¾ hours ago, a friend of the applicant attended at the Brisbane Registry of the Court and sought to file a document headed “Interlocutory Application in Appeal” (the applicant’s Interlocutory Application), together with an affidavit affirmed by the applicant on 21 January 2014 in support of the relief sought in that Interlocutory Application.

5        The applicant commenced this proceeding last Friday (17 January 2014) when he filed an Application for an Extension of Time (the applicant’s EOT application) in respect of an appeal from a decision of a Judge of the Federal Circuit Court of Australia given on 28 June 2013. The applicant’s EOT application was supported by two affidavits sworn by him on 16 January 2014 which were also filed on 17 January 2014.

6        By his Interlocutory Application, the applicant seeks an injunction restraining his deportation pending the determination of his EOT application and a mandatory order allowing him to live in the community.

7        The applicant is represented by a barrister who appeared today by telephone.

8        These Reasons for Judgment determine the applicant’s Interlocutory Application.

BACKGROUND

9        The applicant is a Sri Lankan national who arrived in Australia on 7 February 2010. On 18 April 2010, he made a request for a Refugee Status Assessment (RSA) by the Department and subsequently made a request for an Independent Merits Review (IMR) of the RSA. These procedures were explained by the High Court in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319. At the conclusion of these procedures, the Department rejected the applicant’s claims for protection as a refugee.

10        On 28 June 2013, a judge of the Federal Circuit Court of Australia dismissed a challenge made by the applicant to the relevant independent merits review decision (BZACY v Minister for Immigration and Citizenship [2013] FCCA 646). The applicant did not take any steps to appeal from that decision within the time allowed for such an appeal.

THE DECISION OF THE FEDERAL CIRCUIT COURT

11        I have had only a very short time in which to read and consider the Circuit Judge’s decision. Nonetheless, I note the following:

(a)    The first IMR undertaken in respect of the applicant was set aside by order of the Federal Magistrates Court made by consent. A second IMR was then undertaken. That was the IMR most recently challenged in the Circuit Court.

(b)    The Circuit Judge rejected the allegation of bias made against the reviewer (who is the second respondent in this proceeding) because he found that there was no evidence to support it. He concluded that the applicant’s bias ground had not risen above mere assertion.

(c)    The Circuit Judge also rejected the applicant’s ground of review based upon procedural errors.

(d)    The Circuit Judge also rejected the challenged mounted by the applicant to the reviewer’s credibility findings.

CONSIDERATION

12        The interlocutory relief sought by the applicant is in aid of his EOT application which itself is designed to allow him to bring forward an appeal from the Federal Circuit Court decision of 28 June 2013. It seems to me that I should approach the Application in the conventional way—that is, I need to identify the final relief sought by the applicant in respect of which the interlocutory relief is sought, make an assessment as to the likelihood of success on the part of the applicant in respect of that relief and then weigh the balance of convenience and justice.

13        The final relief presently sought by the applicant is an order extending the time for lodging an appeal from the Federal Circuit Court decision of 28 June 2013. This Court generally approaches EOT applications of that nature by looking at whether there is a satisfactory explanation for the delay in filing the relevant Notice of Appeal and whether there is some prospect that the appeal itself, if allowed, would be successful.

14        In the present case, the applicant says the following as to why it was that his appeal was not lodged within time:

I could not make this appeal within 21 days, due to a number of reasons, including:

(a)    that I was under severe depression and mental health challenges at the time of the decision.

(b)    that I was not in a position to seek legal advice to appeal [i]n time.

(c)    that I had no community help to prepare the appeal documents.

He also says that he did not have the benefit of legal representation.

15        Annexure F to the longer of the two affidavits sworn by the applicant on 16 January 2014 is described in the body of the affidavit as “Documents on health consultations”. Unfortunately, Annexure F did not form part of the affidavit as filed and I have not seen any of the documents said to comprise Annexure F. The absence of any documents capable of supporting the applicant’s assertion that he was depressed and suffering from mental illness meant that the only evidence of these matters was the bald assertion made by him which I have extracted at [14] above.

16        Counsel appearing for the applicant today submitted that the applicant was in fear of his life if he returned to Sri Lanka and that the Court should not permit his EOT application to be pre-empted by his deportation.

17        The reasons advanced by the applicant for failing to lodge his Notice of Appeal within time do not constitute a satisfactory explanation for failing to lodge that appeal. A period of seven months has elapsed since the Circuit Court’s decision was made and I do not accept that the general assertions concerning the applicant’s mental health during that period constitute a satisfactory or sufficient explanation for the delay. In particular, there was no support for those assertions in the form of primary medical evidence concerning the applicant’s health.

18        For that reason, I consider that the applicant’s prospects of obtaining an extension of time are extremely poor.

19        In any event, the grounds upon which the applicant would seek to challenge the decision of the Circuit Court, were he to obtain an extension of time, appear to me at this stage to be flimsy. They are specified in the applicant’s draft Notice of Appeal in the following terms:

Grounds of appeal

1.    That there is a jurisdictional error in the Federal Magistrate Courts decision.

2.    The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent’s recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational.

3.    Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed.

20        These grounds are expressed very generally. Counsel for the applicant did not make any submission by which he sought to support any of them.

21        In my judgment, because the applicant has not provided to the Court a satisfactory explanation for his delay in filing his appeal from the Circuit Court’s decision and because his prospects in successfully prosecuting any appeal are poor, the applicant has failed to establish a prima facie case or a serious question to be tried which is capable of supporting his current claim for interlocutory relief.

22        As to the balance of convenience and justice, it seems to me that it is all one way. The Minister has acted expeditiously to take steps to deport the applicant and the applicant has been on notice of that intention since 10 January 2014. Under the Migration Act 1958 (Cth), a person in the position in which the applicant now finds himself must be removed from Australia as soon as may be practicable. The Minister has now incurred the costs of that removal. In addition, as is obvious, the applicant has had a great deal of time over the last seven months within which to make an application for an extension of time but has chosen not to do so. It is quite obvious that the only reason that the applicant has now made his EOT application is that he is now to be deported. Until detained on 10 January 2014, the applicant did nothing to challenge the Circuit Court’s decision of 28 June 2013.

23        For these reasons, I do not think that the Court should grant any of the relief sought in the applicant’s Interlocutory Application. I propose to dismiss that Application.

24        I note that Counsel for the applicant has undertaken to the Court to pay any fees that may be due in respect of the Application with which I have just dealt.

25        Accordingly, the formal orders of the Court are:

(1)    I note the undertaking given by Counsel for the applicant to the Court that he will pay any fees that may be due to the Court by reason of the filing of the documents referred to in par (2) below.

(2)    I grant leave to the applicant to file in Court the document styled “Interlocutory Application in Appeal” and the affidavit of the applicant, affirmed on 21 January 2014.

(3)    I order that the said Interlocutory Application be dismissed.

(4)    I order the applicant to pay the first respondent’s costs of and incidental to that Application.

Associate:

Dated:    28 January 2014