FEDERAL COURT OF AUSTRALIA

BZAGX v Minister for Immigration and Border Protection [2016] FCA 86

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to file an appeal be refused.

2.    Save for the costs of preparing and copying the application book, the applicant pay the respondent Minister’s costs.

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

REASONS FOR JUDGMENT

JESSUP J

1    This is an application under r 1.39 of the Federal Court Rules 2011, (“the Rules”) for an extension of the time within which to file a notice of appeal prescribed by rule 36.03(a)(i). The judgment from which the applicant seeks to appeal was made by the Federal Circuit Court of Australia on 5 June 2015. The period prescribed by r 36.03, therefore, expired on 26 June 2015. The application for an extension of time was made on 6 October 2015, something in excess of 100 days after the expiration of the time within which the appeal might have been regularly filed. At the time, the applicant was legally represented, and the steps which he took or failed to take were conformable with the advice which he received from that representative.

2    The only explanation for the applicant’s failure to appeal within the time limited by the Rules which appears in the material before the court is that contained in his affidavit affirmed on 30 September 2015. In that affidavit, the applicant said that, after the Federal Circuit Court order was made, he made a request to the Minister for Immigration and Border Protection – and I quote from what he said in his affidavit – “to look into my matter under special circumstances”. What the applicant meant by that was that he applied for the favourable exercise of the Minister’s discretion under s 417 of the Migration Act 1958 (Cth). Self-evidently, he could only have taken that step on legal advice, and he has professed to me today that he did so. It is unfortunate that his legal adviser did not take the prudent step of filing an appeal from the order of the Federal Circuit Court, but that appears to have been the situation and remained the situation on 11 September 2015 when the applicant received a letter from the Minister’s office advising him that the Minister did not propose to exercise the power for which s 417 provided.

3    In these circumstances, I have no option but to conclude that, faced with two possible courses of action to deal with the position created by the unfavourable outcome in the Federal Circuit Court, the applicant, on advice, chose to seek the Minister’s discretionary decision under s 417 rather than challenge the correctness of the Federal Circuit Court order. That was a choice which the applicant made, and it is a strong discretionary consideration against making the order which he now seeks.

4    The situation is very similar to that with which I dealt in MZYLJ v Minister for Immigration and Citizenship [2012] FCA 335. That also was a case in which someone who had failed before what was then the Federal Magistrates Court applied to the Minister under s 417 and only upon the failure of that application did that applicant seek an extension of time to lodge an appeal. In that case, I said (at para 8):

An application to the Minister under s 417 relates not to the decision of the Federal Magistrate in a case such as the present, but to the original decision of the Tribunal. In applying to the Minister under that section, the applicant availed himself of an alternative to pursuing his legal challenge to the jurisdictional correctness of the Tribunal’s decision. That was a choice which he then made, and he tells me that he ultimately received the Minister’s decision, adversely to himself, in December 2011. It was only after he received that decision that he filed the application which is the subject of these reasons. In the view I take, far from the applicant being able to offer a satisfactory explanation for his omission to lodge an appeal within the period specified from the rules of the court, his case demonstrates that he consciously decided not to do so, or at least not to lodge an appeal within a period that would even approximate that specified under the Rules. He chose what was truly, in my view, an alternative course to maintaining his challenge to the validity of the original decision of the Tribunal.

As I have said, the choice which the applicant in the present case made to seek an alternative decision to that made by the Tribunal under s 417 counts quite strongly against the proposition that he should now be granted an extension of time to file an appeal from the order of the Federal Circuit Court.

5    The other two circumstances which are often referred to in applications of this kind are whether the respondent to the proposed appeal would suffer any prejudice if time were extended and whether the proposed appeal has apparent prospects of success.

6    As to the first, counsel for the Minister has indicated this afternoon that his client does not claim that there would be any prejudice from the granting of the application before the court; although doubtless, there is always a public interest in the timely disposition of such potential appeals as parties may have from courts established under Ch III of the Constitution.

7    With respect to the question whether the proposed appeal would have any reasonable prospect of succeeding, I have read the reasons of the Federal Circuit Court and the written submissions filed on behalf of the Minister. The question before me is not whether the appeal would succeed but whether time should be extended to permit the appeal to be prosecuted. All I propose to say about that is that nothing stands out as constituting a potential source of injustice if the present application were rejected.

8    For the reasons I have given, I shall order that the application for extension of time within which to file an appeal be refused.

Associate:

Dated:    3 March 2016