FEDERAL COURT OF AUSTRALIA

ATP16 v Minister for Immigration and Border Protection [2017] FCA 1366

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 6 July 2017 be refused with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an application for an extension of time in which to file a notice of appeal. In summary the applicant applied in the Federal Circuit Court for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the Minister to refuse the applicant a protection visa under the Migration Act 1958 (Cth). The application was unsuccessful. The decision of the primary Judge can be found at ATP16 v Minister for Immigration & Anor [2017] FCCA 1108.

2    It is not in dispute that, in seeking to appeal the decision of the Federal Circuit Court, the applicant is out of time.

3    Relevant matters which may be taken into account in considering whether to grant an extension of time in which to file a notice of appeal were set out in the well-known decision Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 58 ALR 305. Those factors include:

    whether there is any prejudice to the Minister;

    whether there has been a reasonable and adequate explanation for the delay;

    whether the proposed grounds of appeal have merit; and

    fairness to the applicant.

4    In this case the Minister concedes that he would not suffer prejudice from the grant of an extension of time.

5    The Minister submits that the applicant has not provided a reasonable and adequate explanation for the delay. The applicant gives evidence that he is suffering from post-traumatic stress disorder (PTSD) due to his experience in Bangladesh. It may be that the health condition of the applicant has been a reason for his delay in filing the notice of appeal, however he did not rely on this point at the hearing. Rather, at the hearing the applicant submitted that he had not understood the primary Court’s decision, and for that reason had not appealed.

6    In my view, this is neither a reasonable nor adequate explanation for the delay in filing the notice of appeal. It is incumbent on all parties to litigation before the courts to protect their rights and in this case it is surprising (and not credible) that the applicant would not have ascertained the implications of the Federal Circuit Court decision.

7    The third issue however is whether the proposed grounds of appeal have merit. The applicant raises three proposed grounds of appeal, namely:

(1)    The Federal Circuit Court Judge should have found that the Tribunal failed its obligation to investigate the authenticity of documents on which the applicant relied.

(2)    The Federal Circuit Court Judge should have found that the Tribunal prevented the applicant from making a claim for his seeking protection in Australia in violation of the natural justice provisions.

(3)    The Federal Circuit Court judge should have found that the Tribunal erred in applying the “real chance” test when assessing whether the applicant’s fear of persecution was well-founded.

8    Examining these proposed grounds of appeal I consider that they have no merit. This is because:

(1)    In relation to proposed ground 1, it is not the duty of the Tribunal to investigate the authenticity of documents before it. It is open however to the Tribunal to form a view as to the authenticity of otherwise of documents, which occurred here. The fact that the Tribunal’s findings were not in the applicant's favour does not mean that the Tribunal failed in any duty.

(2)    In relation to proposed ground 2, there is nothing before the Court to support any allegation that the Tribunal acted to prevent the applicant making his case before it. During the hearing, when I asked the applicant what he meant by this proposed ground, he said that the Tribunal did not permit him to tell his side of story. However, I note from the Tribunal decision that the applicant appeared before the Tribunal with the assistance of an interpreter and further, that he was assisted by a registered migration agent in the Tribunal proceedings. I do not accept that the Tribunal acted to prevent the applicant properly prosecuting his case before it.

(3)    In relation to proposed ground 3, the High Court in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 explained that, for the purposes of the International Convention and Protocol, a fear of persecution is “well-founded” if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. There is no particularisation of the applicant’s claim that the Tribunal erred in assessing whether his fear of persecution was well-founded. This is merely a global assertion by the applicant without any substance. In any event, when I asked the applicant about this proposed ground at the hearing, he was unable to explain it.

9    In my view the appropriate order is to refuse the applicant’s application for an extension of time with costs.

Associate:

Dated:    21 November 2017