FEDERAL COURT OF AUSTRALIA

BQD17 v Minister for Home Affairs [2018] FCA 1447

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time is dismissed.

2.    The Applicant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The applicant seeks an extension of time within which to seek leave to appeal from a decision of a judge of the Federal Circuit Court of Australia (FCCA) refusing to grant the applicant an adjournment of a show cause hearing conducted in the FCCA pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCCR).

2    The applicant is a citizen of Sri Lanka who travelled to Australia on a visitor visa to participate in a sporting event in late 2014. In December 2014 he lodged an application for a Protection (subclass 866) Visa. The appellant claimed in his visa application that he was caught up in disputes between various Sri Lankan sporting bodies and as a result of his refusal to comply with demands and threats from people who are politically well connected in Sri Lanka, he fears for his life and the life of his family, should he return to Sri Lanka.

3    The Visa application was considered by a delegate of the Minister for Home Affairs, who determined that it should not be granted. The applicant then applied for a review of that decision by the Administrative Appeals Tribunal, which found that the applicant did not meet the criteria under s 36 of the Migration Act 1958 and affirmed the decision of the delegate.

4    The appellant then filed an application in the FCCA for judicial review of the decision of the Tribunal. The proceedings were listed for a show cause hearing on 6 March 2018, following an application by the Minister pursuant to r 44.12 of the FCCR. At that hearing, the appellant was self-represented and assisted by an interpreter in the English and Sinhalese languages. He was granted an adjournment on that day, because the solicitors who had previously acted on his behalf had recently ceased to do so, and because he appeared not to have received a copy of the court book.

5    The matter was then listed for hearing on 20 March 2018. The decision of the primary judge records that on the day before the hearing, the Federal Circuit Court registry had received a facsimile from the applicant that included a copy of a medical certificate stating that the applicant “…has a medical condition and will be unfit for work from 19/03/2018 to 20/032018” and a prescription for Voltaren tablets. On the same day, the registry received a further facsimile, apparently from the applicant, stating:

This is to notify you that I am not able to attend for the hearing tomorrow at 10.00am as I am having back pain and currently under medication and therefore I am unfit to attend for the hearing.

Herewith I am attaching the Medical Certificate and prescriptions for your reference.

6    The matter was called on for hearing on 20 March 2018. The legal representatives for the Minister tendered correspondence indicating that they had informed the applicant that should he seek an adjournment of the hearing it would be opposed, and the Minister would urge the court to proceed with the hearing. The applicant did not appear.

7    The primary judge relevantly said:

[12] It is clear from the Applicant’s subsequent correspondence sent by facsimile to the Court at 4.30pm on 19 March 2018 that the Applicant was seeking an adjournment on the basis of the medical certificate and prescription the Applicant provided to the Court. The Minister opposes the adjournment and I refuse the adjournment for the following reasons:

a) the Applicant knew of the adjourned final hearing date today. The Applicant was present in Court on 6 March 2018 when I announced the date and time of the adjourned final hearing date and was also notified by email; and

b) the medical certificate that the Applicant relies on is wholly deficient for the purpose of satisfying the Court that the Applicant cannot travel to Court and attend and/or participate in today’s hearing.

[13] I note that in his correspondence sent to the Court by facsimile at 4.30pm on 19 March 2018, the Applicant refers to the fact that he has back pain and that he cannot attend the hearing. However, this is not probative evidence of a satisfactory medical condition. The medical certificate itself is deficient in satisfying the Court that the Applicant cannot travel to Court and attend the hearing because it does not specify the medical condition that the Applicant is suffering from. The medical certificate simply says that the Applicant is suffering from a medical condition and only says that the Applicant is unfit for work. It does not address the critical question of whether the Applicant is fit to travel to the Court and to attend and participate in the hearing today.

[14] I rely on a decision of Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (“NAKX”) and the observations made by his Honour in relation to the adequacy of medical certificates provided to the Court (NAKX at [6]-[9]). All this Court has before it is a pro forma medical certificate which is not of assistance. The medical certificate certainly does not satisfy the Court that the Applicant is unable to attend the hearing today. For those reasons, I refuse the Applicant’s application for an adjournment.

8    After refusing the adjournment, the primary judge proceeded to dismiss the applicant’s application pursuant to FCCR rule 13.03C(1)(c), which provides:

Default of appearance of a party

(1)  If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following:

 …

(c)  if the absent party is an applicant--dismiss the application;

…

2.    THE APPLICATION

9    The applicant has now filed an originating application, applying pursuant to rule 35.14 of the Federal Court Rules 2011 (Cth) (FCR) for an extension of time to appeal from the decision of the primary judge.

10    The originating application provides that the grounds of the application are set out in the accompanying affidavit filed by the applicant. That affidavit relevantly states:

3 I could not attend to the court hearing on 20 March 2018 as I was very sick on this date.

4 I provided a Medical Certificate confirming my incapability to attend to the court.

5 My car goods, court documents and my mobile phone were stolen. All my court documents were in the car and related emails were in the phone. Until rearrange everything, I could not file the application. Because of this I file delayed application.

11    The applicant also relies on a draft notice of appeal that contains two grounds:

1. The proceeding in the order which the application relates was pronounced involves a question of law.

2. Applicant has provided the Medical Certificate and was not considered properly.

12    The Minister has filed a Notice of Objection to Competency. In it the Minister contends that the decision of the primary judge is interlocutory in nature and that accordingly leave is required before an appeal can be advanced; FCR r 35.12. No application for leave to appeal has been filed. The Notice of Objection also contends that FCR r 35.13(a) requires that any application for leave to appeal must be filed within 14 days of the judgment below. In the present case the originating application was not filed within that time. FCR r 35.14(1) states that a person who wants to apply for an extension of time to seek leave to appeal must file an application in accordance with Form 118, which the applicant has not done.

3.    CONSIDERATION

13    The present application was listed for hearing on 20 August 2018. The applicant attended the hearing and represented himself, with the assistance of an interpreter. He filed no submissions in advance of the hearing. In brief oral submissions he urged on the Court the fact that he was in fact unwell at the time the proceeding was called on before the FCCA and asked that he have an opportunity to continue the matter.

14    The Minister filed written submissions in advance and was represented at the hearing by his solicitors, DLA Piper. The Minister’s written submissions were confined to the claim that the court had no jurisdiction to hear the application because it is incompetent. However, the Minister submitted at the hearing that even if the objection to competency were not made out, the application has no merit and ought to be dismissed.

15    Section 24(1)(d) of the Federal Court of Australia Act 1976 (FCA Act) provides that this Court has jurisdiction to hear appeals from judgments of the FCCA. There can be no doubt that the decision of the primary judge was interlocutory in nature.  As McHugh ACJ, Gummow and Heydon JJ said in Re Luck [2003] HCA 70; (2003) 203 ALR 1 at [4]:

[T]he usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.

16    Accordingly it is necessary for the applicant to seek leave to appeal, pursuant to s 24(1A) FCA Act. See also; Dai v Michael Roberts Strata Management Services Ltd [2000] FCA 680 at [4]-[7]. An application for leave to appeal must be filed within 14 days of the date of the orders made; FCR r 35.13(a). The present application in this court was filed some 20 days after that date. Accordingly, the applicant must obtain the leave of the court for an extension of time within which to seek leave to appeal and for leave to appeal.

17    FCR r 35.14 provides that a person who wants to apply for an extension of time to seek leave to appeal must file an application in accordance with Form 118. The application must be accompanied by the judgment from which leave to appeal is sought, the reasons for the judgment and an affidavit stating briefly but specifically the facts on which the application relies and why the application for leave to appeal was not filed within time, and a draft notice of appeal that complies with r 36.01(1) and (2).

18    The application filed by the applicant in the present case is not completed in accordance with Form 118. However, it is accompanied by an affidavit that states the basis upon which the applicant seeks an extension of time, being the explanation set out in paragraph 5 concerning the theft of court documents and mobile phone from the applicant’s car. The application is also accompanied by proposed grounds of appeal. Accordingly, as a matter of substance the applicant has complied with the requirements of FCR 35.14, even though he has not filed the correct form. In those circumstances, and bearing in mind that the applicant is self-represented, I do not consider that the applicant’s application to this court is incompetent, but proceed on the basis that this Court does have jurisdiction to hear the substantive applications for an extension of time and for leave to appeal.

19    The considerations as to whether an extension of time should be granted depend on three factors: the explanation for the delay, the prejudice to the respondent arising from the delay and the merits of the appeal. In considering the question of the grant of leave to appeal, I must take into account the statements of principle in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397, to the effect that this Court will generally grant leave to appeal where the applicant shows that there is sufficient doubt as to the correctness of the judgment subject to the proposed appeal to warrant review and, further, if that judgment is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

20    In the present case the Minister does not contend that he suffers prejudice arising from the delay in filing the present application. Nor does he seek to challenge the evidence advanced on the part of the applicant to the effect that the delay in filing arises from the theft of the court documents and his mobile phone from his car. He does, however, submit that there is not sufficient doubt as to the correctness of the decision to warrant the grant of leave, or the extension of time.

21    In this regard it is necessary to consider the two grounds of appeal advanced.

22    The first is, in effect, that the proceeding in which the orders dismissing the application before the FCCA involved “a question of law”. This is not a ground of appeal at all, and may be set to one side.

23    The second is in effect a challenge to the exercise of discretion by the primary judge in declining to grant the adjournment. In it, the applicant contends that he provided a medical certificate and that it was not considered properly. A similar contention is advanced in paragraphs 2 and 3 of the affidavit in support, where the applicant emphasises that he was very sick on the date of the hearing.

24    The standard of appellate review applicable to the exercise of a judicial discretion is set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505. It is not enough that the judge composing the appellate court considers that, if he or she had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary judge acts upon a wrong principle, if she allows extraneous or irrelevant matters to guide or affect her, if she mistakes the facts, if she does not take into account some material consideration, then her determination should be reviewed and the appellate court may exercise its own discretion in substitution for hers if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in her order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

25    In the present case I do not consider that the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered. It was within the discretion of the primary judge to decide whether or not to allow the applicant and adjournment of his hearing. It was relevant and appropriate for the primary judge to consider the adequacy of the medical certificate and to conclude that it was unsatisfactory for the purpose of satisfying the Court that the Applicant could not travel to Court and participate in the hearing. No details of his illness were provided in the medical certificate that would permit the primary judge to form the view that the inconvenience to the court, the Minister and other litigants seeking to be heard in their matters was warranted. Furthermore, FCCR r 16.05 provides that the FCCA may vary or set aside a judgment or order after it has been entered if it was made in the absence of a party, a step that the applicant could and should have taken if he had wished to set aside the dismissal of his action.

26    As a result of these matters, I do not consider that it is in the interests of justice to grant the extension of time seeking leave to appeal from the decision of the primary judge. The application must be dismissed and the applicant must pay the first respondent’s costs of the application.

Associate:

Dated:    21 September 2018