FEDERAL COURT OF AUSTRALIA
BQV16 v Minister for Immigration and Border Protection [2017] FCA 1184
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
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 taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 The Applicant is a citizen of Pakistan.
2 He applied for a protection visa in March 2014. That application was rejected by a delegate of the Minister in September 2014. Review of the delegate’s decision was sought. The Administrative Appeals Tribunal held a hearing in January 2015 and in June 2016 affirmed the delegate’s decision.
3 Judicial review of the Tribunal’s decision was then sought. The Federal Circuit Court summarily dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) in November 2016: BQV16 v Minister for Immigration & Border Protection [2016] FCCA 2992. The Applicant was present in Court when the proceeding was dismissed and the order then made.
4 In April 2017 the Applicant filed in this Court an Application for Extension of Time and Leave to Appeal from the Federal Circuit Court’s decision. An extension of time is required because any application for leave to appeal should have been filed much earlier; indeed, the present Application is over 120 days out of time. Leave to appeal is required because the decision of the Federal Circuit Court was an interlocutory decision: cf. SZTOV v Minister for Immigration and Border Protection [2014] FCA 942 at [7] per Flick J. An affidavit in support of the present Application relevantly states that the Applicant “could not apply to the Federal Court of Australia within the required time … because I did not get a copy of the decision to my home address” and he “was unsure whether [the] matter was finalised or not”.
5 If an extension of time and leave to appeal were to be granted, the draft Notice of Appeal sets forth the same two grounds upon which review was sought before the Federal Circuit Court.
6 The Applicant appeared both before the Federal Circuit Court and this Court unrepresented.
7 The application for an extension of time and for leave to appeal is refused.
8 Although the discretion to grant an extension of time should not be constrained by any inflexible verbal formulation of the circumstances in which an extension may be granted, it is commonly accepted that an extension may be granted where it is necessary to do justice between the parties (cf. Gallo v Dawson (1990) 64 ALJR 458 at 459 per McHugh J) or to ensure the proper administration of justice (SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [18] per Flick J). Leave to appeal, accordingly, may be granted where the decision sought to be reviewed is attendant with sufficient doubt to warrant a grant of leave and where substantial injustice would result if leave were refused (Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139 at [5], (2010) 81 ATR 36 at 38 per Ryan, Stone and Jagot JJ).
9 In the circumstances of the present case, the decision of the Federal Circuit Court is not attendant with sufficient doubt to warrant reconsideration by this Court.
10 The reasons for decision of that Court canvas in considerable detail the findings and reasons of the Tribunal and address the two grounds upon which judicial review by that Court was sought. The factual merits of the claims made by the Applicant were considered and resolved by the Tribunal. Those findings were subsequently reviewed by the Federal Circuit Court as part of its function in considering whether the law had been properly applied by the Tribunal to the findings as made. No submission could prevail that the Applicant has not had an adequate opportunity both to set forth the facts relied upon in support of his claim for a protection visa and an opportunity to seek judicial review as to the manner in which the law was applied to those facts.
11 But one of the difficulties confronting the Federal Circuit Court, and this Court on appeal, was the lack of any precision as to the manner in which either of the two grounds of review were sought to be advanced. The first such argument, for example, was simply expressed as follows (without alteration):
The Tribunal did not apply law relevant to the applicant’s claims correctly, namely s. 36(2)(a) and 36(2)(aa) of the Migration Act 1958. The applicant says the Tribunal did not apply the correct legal test and took into account irrelevant considerations and did not take into account relevant considerations.
As was the conclusion of the Federal Circuit Court ([2016] FCCA 2992 at [36]), there is no self-evident error as to the manner in which the Tribunal applied s 36. The “irrelevant considerations” said to have been taken into account and the “relevant considerations” said not to have been taken into account were not further identified.
12 Similarly, the second argument was expressed as follows (again without alteration):
The Tribunal did not give a proper opportunity for the applicant to be heard and thereby breached the hearing rule. The applicant says there was apprehended bias in the Tribunal’s decision.
No further basis was advanced by the Applicant as to why he was not afforded a “proper opportunity … to be heard”. It was, as was the conclusion of the Federal Circuit Court, a “bare assertion” ([2016] FCCA 2992 at [38]). Nor was there any further elaboration by the Applicant as to why the Tribunal decision manifested “apprehended bias”. The Federal Circuit Court Judge was correct to reject the argument ([2016] FCCA 2992 at [38] to [39]).
13 It may further be noted that the proposed Grounds of Appeal are expressed in the same terms as the grounds of review advanced below. No appellable error is identified in those Grounds, the Grounds being expressed in terms of error on the part of the Tribunal rather than any error said to have been committed by the Federal Circuit Court Judge. Such an approach is to be “firmly rejected”: SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 at [9] to [10] per Flick J. The more so is this the case where the opportunity was extended to the Applicant during the course of the hearing before this Court to identify any error said to have been committed by the primary Judge and where it was frankly accepted that no error could be identified. Even though the Applicant was unrepresented, he could not identify even in his own words why the primary Judge “got it wrong”.
14 The proper administration of justice does not, in such circumstances, warrant any extension of time.
15 Even though the Respondent Minister does not claim any prejudice in the event that an extension of time were to be granted, the absence of prejudice does not preclude the refusal of an extension of time: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [11], (2015) 238 FCR 341 at 344 per North, Besanko and Flick JJ.
16 It is also not without relevance to note that the Applicant has failed to provide any real explanation as to why he did not apply for leave to appeal at a far earlier point of time and within the 14 day period prescribed by r 35.13 of the Federal Court Rules 2011 (Cth). The Applicant was present in Court when the order was made dismissing his proceeding in November 2016. Albeit only one of the considerations of relevance to the exercise of the discretion conferred is the fact that there is a legitimate interest in public law matters being resolved in a timely and efficient manner: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62], (2001) 64 ALD 9 at 24 per Gyles J; SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30] per Lander J; Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [89], (2016) 243 FCR 220 at 247 per Flick and Rangiah JJ.
CONCLUSIONS
17 The Application for Extension of Time and Leave to Appeal is refused. The proceeding should be dismissed.
18 There is no reason why the Applicant should not pay the costs of the First Respondent.
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 taxed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. |
