FEDERAL COURT OF AUSTRALIA
BUL15 v Minister for Immigration and Border Protection [2017] FCA 1373
ORDERS
First Applicant BUM15 Second Applicant BUN15 Third Applicant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS BY CONSENT THAT:
1. Pursuant to Div 9.6 of the Federal Court Rules 2011 (the Rules), the first applicant be appointed as the litigation representative of the third applicant.
2. The requirements in rr 9.63 and 9.64 of the Rules (that an application and an affidavit of consent in relation to the appointment in paragraph 1 of these orders be filed) be dispensed with.
3. The requirement in r 9.66(3) of the Rules (that a litigation representative who is not a lawyer be represented by a lawyer) be dispensed with.
4. To the extent necessary, the need for compliance with Div 9.6 of the Rules be dispensed with from the commencement of the proceeding until the date of these orders.
THE COURT ORDERS THAT:
Application for an extension of time to file a notice of appeal
5. The applicants be granted an extension of time within which to file a notice of appeal.
6. By 4.00 pm on 24 November 2017, the applicants file and serve a notice of appeal, in the form of the draft notice of appeal annexed to the affidavit of the first applicant dated 16 August 2017.
7. Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), the transcript of the hearing on 22 November 2017 be marked as confidential on the Court file and not be made available for public inspection in the Registry.
8. Pursuant to s 37AG(2) of the Federal Court of Australia Act 1976 (Cth), the ground for making paragraph 7 of these orders is that it is necessary to prevent prejudice to the proper administration of justice.
9. The costs of the applicants’ application for an extension of time within which to file a notice of appeal be reserved.
Directions for the hearing of the appeal
10. By 4.00 pm on 24 December 2017, the first respondent file and serve an appeal book for the appeal.
11. By 4.00 pm on 19 January 2018, the appellants file and serve any further written submissions for the appeal.
12. By 4.00 pm on 31 January 2018, the first respondent file and serve any further written submissions for the appeal.
13. By 4.00 pm on 7 February 2018, the appellants file and serve any reply submissions.
14. The written submissions of the parties are not to exceed 10 pages in length, including any annexures, and must be easily legible, using a font size of at least 12 points and one and a half line spacing throughout.
15. The appeal be listed for hearing on a date to be fixed, during the February 2018 Full Court period if possible.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MOSHINSKY J:
1 The applicants seek an extension of time of six days in which to appeal from a judgment of the Federal Circuit Court of Australia.
2 The first applicant is a national of the Philippines. The second applicant is his de facto partner and the third applicant is their child. At the outset of the hearing, I made orders by consent that the first applicant be appointed as the litigation representative of the third applicant, who is a minor.
3 The first applicant originally applied for a Protection (Class XA) visa (a protection visa) on 1 November 2010, with the second and third applicants also applying for protection visas as members of his family unit. This application was refused by a delegate of the first respondent (the Minister). That decision was affirmed on 7 June 2011 by the Refugee Review Tribunal.
4 Subsequently, following the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the applicants again applied for protection visas, on the basis of the ‘complementary protection’ criteria in the Migration Act 1958 (Cth). That application was also refused by a delegate of the Minister. The applicants sought review of that decision by the Administrative Appeals Tribunal (the Tribunal). On 3 August 2015, the Tribunal affirmed the delegate’s decision not to grant the protection visas.
5 On 7 September 2015, the applicants commenced a proceeding in the Federal Circuit Court seeking judicial review of the decision of the Tribunal. The applicants were represented by a solicitor in the Federal Circuit Court proceeding.
6 On 20 July 2017, the Federal Circuit Court dismissed the proceeding.
7 On 16 August 2017, the applicants sought to file a notice of appeal in this Court, but were informed that they were out of time (the applicable time period being 21 days). The applicants then filed an application for an extension of time within which to file a notice of appeal. It is common ground that this application was filed six days after the period of time prescribed for the filing of a notice of appeal had elapsed.
8 In support of the application for an extension of time, the applicants rely on an affidavit of the first applicant dated 16 August 2017. In that affidavit, the first applicant stated that he had understood that the period of time in which to appeal was 35 days and that his bridging visa would run out in 28 days. He stated that it was only when he went to file his documents in the Registry that he was told that he had 21 days in which to appeal. This evidence is unchallenged.
9 The applicants have provided a draft notice of appeal, which was annexed to the affidavit of the first applicant. The grounds of appeal cover substantially the same matters as the ground that was before the Federal Circuit Court judge.
10 In the circumstances, and taking into account, in particular, the short period of delay and the explanation that has been provided for the delay, I consider it appropriate to grant the extension of time sought by the applicants. I note that it is not suggested that there is any relevant prejudice to the Minister. Given the short period of delay, and the explanation provided, I do not consider it necessary to examine the grounds of appeal in detail. Although they have been rejected by the Federal Circuit Court judge, they do not appear on their face to be unarguable.
11 To protect the confidentiality of the applicants, whose names were discussed during the course of the hearing, I will make orders that the transcript be marked as confidential on the Court file and not be made available for public inspection in the Registry. I will also make procedural orders to facilitate the filing of an appeal book and submissions ahead of the hearing of the appeal.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. |
Associate:
