CJD15 v Minister for Immigration and Border Protection [2017] FCA 1283

FEDERAL COURT OF AUSTRALIA

CJD15 v Minister for Immigration and Border Protection [2017] FCA 1283 Appeal from: CJD15 v Minister for Immigration & Anor [2017] FCCA 769

File number(s): WAD 267 of 2017

Judge(s): SIOPIS J

Date of judgment: 3 November 2017

Date of hearing: 31 October 2017

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 22

Counsel for the Appellant: The Appellant appeared in person.

Counsel for the First Respondent: Ms T Jonker

Solicitor for the First Respondent: Australian Government Solicitor

ORDERS WAD 267 of 2017

BETWEEN: CJD15 Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: SIOPIS J DATE OF ORDER: 3 NOVEMBER 2017

THE COURT ORDERS THAT:

1. The appeal is dismissed on the ground that it is incompetent. 2. The appellant is to 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

SIOPIS J: 1 The appellant is a citizen of Sri Lanka who arrived in Australia in July 2012. On 16 January 2013, he applied for a protection visa under the Migration Act 1958 (Cth), claiming to fear persecution from the Sri Lankan Army (SLA) by reason of his Tamil ethnicity, his perceived association with the Liberation Tigers of Tamil Eelam (LTTE) and because he has claimed asylum in Australia. 2 On 6 March 2014, a delegate of the Minister for Immigration and Border Protection (the Minister) refused to grant the protection visa. 3 On 26 March 2014, the appellant applied for a review of the delegate's decision. 4 On 26 October 2015, the Administrative Appeals Tribunal (the Tribunal) affirmed the decision of the delegate not to grant the appellant a protection visa. The appellant applied to the Federal Circuit Court of Australia for judicial review pursuant to s 476 of the Migration Act. 5 On 21 April 2017, the Federal Circuit Court dismissed the appellant's application for judicial review on the basis that the appellant had failed to establish any jurisdictional error by the Tribunal. 6 On 12 June 2017, the appellant lodged a notice of appeal from the orders of the Federal Circuit Court to this Court; that document was accepted for filing on 14 June 2017. The notice of appeal purports to rely on the following four grounds of appeal: 1. Jurisdictional error by the first and second respondent[s] who fell into [sic] by not applying the law or facts presented by the way of evidence and documents. 2. The primary judge agreed entirely with the decision of the second respondent and thereby fell into jurisdictional error. 3. Procedural error. 4. Not following the laws of natural justice. 7 On 26 July 2017, the Minister filed a notice of objection as to the competency of the appeal. The Minister's grounds for objection are, first, that the notice of appeal was not filed within 21 days after the date of the Federal Circuit Court judgment, as required by r 36.03 of the Federal Court Rules 2011 (Cth) (the Rules); and, secondly, that the appellant has not filed any application for an extension of time in which to file the notice of appeal, pursuant to r 36.05 of the Rules. 8 The Minister's objection to competency is upheld. As the Minister has contended, the appellant had not applied for, nor obtained, an extension of time within which to file his notice of appeal. 9 In any event, even if the appellant had made such an application for an extension of time and there was a reasonable explanation for the delay in filing the notice of appeal, the application for the extension of time would have failed. This is because, for the reasons set out below, the appellant's notice of appeal would not have enjoyed a sufficient prospect of success to warrant the granting of the extension of time. 10 I deal with each of the grounds of appeal which are set out in [6] above.