FEDERAL COURT OF AUSTRALIA

BGK15 v Minister for Immigration and Border Protection [2018] FCA 630

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be refused.

2.    The applicant pay the respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J

1    The applicant seeks on extension of time to appeal from a judgment of the Federal Circuit Court of Australia (FCCA). The judgment is dated 27 October 2017 and is reported as BGK15 v Minister for Immigration and Border Protection [2017] FCCA 2605.

2    The application for extension of time was filed on 20 December 2017 and was supported by an affidavit affirmed by the applicant on 20 December 2017.

3    The 21 day period within which the appeal should have been brought expired on 18 November 2017 (see r 36.03 of the Federal Court Rules 2011 (Cth)). Accordingly, the applicant seeks an extension of time to bring the appeal. The Minister opposed time being extended on the ground that the explanation for the delay is unsatisfactory and the proposed grounds of appeal lack merit.

Summary of background matters

4    The applicant is a citizen of Egypt. He arrived in Australia on 7 January 2013 and held a visa which had a condition to the effect that he would not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while he remained in Australia. The applicant applied for a protection visa on 13 February 2013. That application was refused by the delegate on 26 September 2013. That decision was subsequently affirmed by the then Refugee Review Tribunal on 1 October 2014. Judicial review proceedings brought by the applicant in the FCCA against the Tribunal’s decision were unsuccessful.

5    On 18 July 2016, the applicant applied for a waiver of the condition on his visa. He relied on his relationship with an Australian partner whom he said suffered from serious medical conditions and would be unable to accompany him to Egypt. He also claimed to fear persecution should he be returned to Egypt. In relation to his claims about his Australian partner, he stated that a medical report would be provided, but this did not occur notwithstanding a Departmental request to him on 18 July 2016. The first request for a waiver of the condition was refused by the delegate on 26 July 2016.

6    On that day, the applicant made a second request for a waiver of the condition. On this occasion, he attached to his request a medical report entitled “Health Summary Sheet” relating to his partner. Significantly, he did not repeat his previous claim that he would be harmed if he returned to Egypt. On 3 August 2016, the applicant was notified that his second waiver request had been refused.

7    The applicant’s judicial review application in the FCCA related only to the second waiver request.

Summary of FCCA proceeding

8    The applicant represented himself in the FCCA. He raised three grounds of judicial review, namely:

(a)    The Department refused the first request because medical evidence was not provided within seven days.

(b)    His second waiver request was accompanied by a medical certificate but the Department failed to consider the contents of the medical certificate and failed to consider the circumstances and fear for the applicant’s life if he were required to return to Egypt.

(c)    The Department failed to consider that there are compelling circumstances in this matter.

9    Ground 1 was dismissed on the basis that it involved an assertion of fact and did not disclose any jurisdictional error.

10    Ground 2 was rejected on the basis that:

(a)    the primary judge was not satisfied that the delegate did not consider the medical certificate, having regard to statements in the delegate’s statement of reasons;

(b)    while the primary judge accepted that the delegate did not consider the applicant’s claimed fear of harm if he were returned to Egypt, no jurisdictional error was involved because the applicant did not raise this matter in his second waiver request.

11    Ground 3 was rejected by the primary judge who reasoned that, although it could be inferred that the delegate did not consider whether there were any compelling circumstances, no jurisdictional error was involved having regard to the particular circumstances. In particular, because a previous request for waiver had been rejected, regs 2.05(4)(a) and (b) of the Migration Regulations 1994 (Cth) (the Regulations) required the delegate to be satisfied not only that compelling and compassionate circumstances developed after the applicant was granted the visa containing the relevant condition, but also that those circumstances were substantially different from those considered by the previous delegate. His Honour found that the delegate had concluded that the circumstances were not substantially different from those considered by the first delegate so it was therefore immaterial whether the second delegate considered whether or not the circumstances were compelling or compassionate.

The application for extension of time

12    The applicant represented himself in this Court and was assisted by an Arabic interpreter.

13    The applicant deposed in his affidavit that, in circumstances where he had not notified the FCCA of his new address, he only received a copy of the primary judge’s reasons for judgment on 18 December 2017, but he believed that he had an arguable case.

14    The draft notice of appeal contains the following three proposed grounds of appeal (without alteration):

(a)    At the time of my application to waive 8503 condition I provided medical evidence within 7 days yet the Department failed to act on it and decided that my request is not compelling and refused to waive 8503 condition.

(b)    His Honour also failed to accept the grounds of my application even though he gave me the opportunity to talk about it.

(c)    I do not agree with the judgment of His Honour because the evidence I provided represents different circumstances and the Department failed to act on it.

15    Many of the applicant’s oral submissions were directed to the merits of his case. He was unable to identify any arguable error in the primary judge’s reasons for judgment despite being repeatedly invited by the Court to do so. He complained that the delegate had failed to take into account the fact that he feared persecution if he were returned to Egypt. It was pointed out to him that while he had made such a claim in his first waiver request he did not repeat that claim in the second waiver request and it is the delegate’s decision in respect of the latter which is the subject of this proceeding. It is a matter for the applicant to determine whether or not he wishes to make an appropriate application to the Department if he considers that circumstances have changed since his first protection visa application was refused and he is at risk of persecution or, alternatively, that that risk is relevant to any further request to waive the condition.

Consideration and disposition of the application

16    Considerations relevant to the exercise of the Court's discretion to extend time include, but are not limited to, whether the Court is satisfied that there is an acceptable explanation for the delay, whether there would be any undue prejudice to the respondent if the Court were to grant an extension of time, and whether there is any merit in the proposed appeal (see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; AOT15 v Minister for Immigration and Border Protection [2016] FCA 1085 and BBW15 v Minister for Immigration and Border Protection [2016] FCA 128).

17    I am prepared to accept that the applicant has provided an acceptable explanation for the delay in making this application. In doing so, I take into account that the applicant is a litigant in person. The Minister did not claim that he would suffer any undue prejudice if an extension of time were granted.

18    The difficulty, however, with the application for an extension of time is the absence of merit in the proposed appeal. In substance, the proposed grounds of appeal reflect the three grounds of judicial review which were unsuccessful below. There is no arguable error on the part of the primary judge raised by any of the three proposed grounds of appeal.

19    The first proposed ground effectively consolidates the three judicial review grounds run unsuccessfully below. No arguable appealable error has been demonstrated in relation to the primary judge’s reasons for rejecting each of those grounds, as summarised in [9] to [11] above. Indeed, I consider that his Honour’s reasoning is correct.

20    The first proposed ground is misconceived if it relates to matters which occurred in relation to the applicant’s first waiver request, which was not the subject of his judicial review proceeding below, and so, in those circumstances, it cannot be the subject of the proposed appeal. It is evident from the Department’s decision record dated 3 August 2016 that the second waiver request was rejected on the basis that the decision-maker was not satisfied that the circumstances described in the second request were substantially different from those previously considered. The decision-maker acknowledged that the applicant had provided a list of medications and conditions that affected his partner, but she was not satisfied that this additional information “represents substantially different circumstances”. That finding was reasonably open on the evidence.

21    The second proposed ground of appeal amounts to nothing more than a complaint that the primary judge failed to uphold the applicant’s judicial review case. No arguable appealable error has been identified in relation to the primary judge’s reasons for judgment.

22    The same may be said in respect of the third proposed ground of appeal. On one view, it simply amounts to a statement of dissatisfaction with the outcome of the FCCA proceeding. To the extent that this proposed ground challenges the primary judge’s reasoning in respect of judicial review ground 3, no appealable error is disclosed. Whether or not the circumstances relating to the second waiver request were substantially different from those considered by the previous delegate involved the second delegate making a finding of fact. While there is some scope for judicial review of findings of fact, they are relatively limited, save in the case of jurisdictional facts (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 70 AAR 413 at [37] and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 154 ALD 221 at [83] and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [132] per Crennan and Bell JJ). The applicant has failed to demonstrate that any of these authorities arguably apply here.

Conclusion

23    The application for extension of time is refused. The applicant must pay the respondent’s costs.

Associate:

Dated:    11 May 2018