BMW15 v Minister for Immigration and Border Protection [2017] FCA 53

FEDERAL COURT OF AUSTRALIA

BMW15 v Minister for Immigration and Border Protection [2017] FCA 53 Appeal from: Application for Extension of Time: BMW15 v Minister for Immigration and Anor [2016] FCCA 1507

File number: VID 810 of 2016

Judge: JESSUP J

Date of judgment: 1 February 2017

Legislation: Federal Court of Australia Act 1976 (Cth) s 25

Date of hearing: 1 February 2017

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 5

Counsel for the Applicant: The applicant did not appear

Counsel for the Respondents: Ms P Mitchell

Solicitor for the Respondents: Clayton Utz

ORDERS VID 810 of 2016

BETWEEN: BMW15 Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: JESSUP J DATE OF ORDER: 1 FEBRUARY 2017

THE COURT ORDERS THAT:

1. The application for an extension of time be dismissed. 2. The applicant pay the costs of the respondent Minister. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JESSUP J: 1 Before the court is an application by BMW15 for an extension of time within which to lodge an appeal against a judgment of the Federal Circuit Court of Australia made on 21 June 2016. 2 The application was filed on 18 July 2016 and was listed for hearing on 7 November 2016. In the period leading to that date, the applicant corresponded with the respondent Minister, enclosing letters from his medical practitioners, the drift of which was that he was suffering from dizziness and blurring of vision, and was unable to attend the hearing in court. The Minister consented to the deferral of the hearing on 7 November 2016, and the proceeding was taken out of the list and re-listed for today, 1 February 2017. 3 By correspondence dated 10 January 2017, with which was enclosed a letter from the applicant's psychologist, the applicant said that he was suffering from depression and severe mental health problems and was not mentally capable of organising legal representation. He requested that his hearing be postponed for a few months. That request did not attract the Minister's consent. 4 The view which I took in chambers was that I should not act on the correspondence which the applicant had forwarded, but give him leave to renew his application for an adjournment upon the hearing of the matter. I took that view because, in the absence of consent from the Minister, it was inappropriate to act upon the unsworn correspondence upon which the applicant sought to rely, and in the light of the following conclusion expressed by his psychologist in the letter to which I have referred: The applicant's situation is unresolved, and he feels he cannot plan or set goals for his future until his application has been resolved. He is in fear of returning to Sri Lanka, and the uncertainty is contributing to his mental illness. The applicant is finding the support and structures in Australia very helpful, and believes he will eventually recover from past trauma and his mental health will improve if given the opportunity to live in Australia. I took the view that the correspondence did not provide grounds for the conclusion that the applicant, whether or not represented, would be incapable of attending court today, if only for the purpose of renewing his application for an adjournment. 5 When the proceeding was called on this morning, the applicant did not appear. I was invited by counsel for the Minister to dismiss the application under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), as applied in the circumstances of this application by subs (2BA) of that section. I propose to accede to that invitation. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.