FEDERAL COURT OF AUSTRALIA ADB16 v Minister for Immigration and Border Protection [2017] FCA 1628 Appeal from: Application for extension of time: ADB16 v Minister for Immigration [2017] FCCA 1055 File number: NSD 1050 of 2017 Judge: RARES J Date of judgment: 15 November 2017 Legislation: Migration Act 1958 (Cth) s 36 Cases cited: Bienstein v Bienstein (2003) 195 ALR 225 Jackamarra v Krakouer (1998) 195 CLR 516 R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 Date of hearing: 15 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 13 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Mr K Eskerie of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS NSD 1050 of 2017 BETWEEN: ADB16 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: RARES J DATE OF ORDER: 15 NOVEMBER 2017 THE COURT ORDERS THAT: 1. The application for an extension of time be 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 (REVISED FROM THE TRANSCRIPT) RARES J: 1 The applicant seeks an extension of time to challenge the decision of the Federal Circuit Court given on 19 May 2017 refusing him Constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal given on 21 December 2015 that affirmed the decision of the Minister's delegate not to grant the applicant a protection visa: ADB16 v Minister for Immigration [2017] FCCA 1055. The applicant filed his application on 29 June 2017, a little over two weeks after the time for filing a notice of appeal. 2 On 10 October 2017, this application for an extension of time was fixed for hearing today before me. The Court notified the parties of this hearing by sending an email on 10 October 2017 to the applicant at his email address noted on his application for extension of time and to the solicitors for the Minister. The Court had previously notified the applicant by email dated 26 July 2017 that this application would be listed during the Full Court sittings commencing on 30 October 2017. 3 On 12 October 2017, the Minister sent by prepaid registered post a confirmation of the listing today before me, attaching a copy of the Registrar's email of 26 July 2017 and the Registrar's directions of 26 July 2017. 4 On 8 November 2017, the solicitors for the Minister sent by prepaid express post a copy of his submissions and list of authorities with a reminder of the listing before me today. On 9 November 2017, my associate noted the receipt of the Minister's submissions and list of authorities and she noted that the applicant had provided the Court with an email address for correspondence, asking the parties to ensure that any correspondence with the Court be copied to the applicant. 5 The applicant has not filed any submissions and did not appear today when the matter was called outside the Court. Background 6 In his affidavit in support of an extension of time, the applicant claimed that he did not have enough money to pay the filing fees, and that there had been a wrong application of the law, procedural unfairness and that his claims before the Tribunal and the Federal Circuit Court were well founded. 7 The Tribunal found that the applicant was not a witness of truth and the accounts on which his claims for protection were based were false. It disbelieved his claims about officials in China attending at a business that he was operating, taking money from him, demanding a large amount of money from him and subsequently coming to his premises, taking goods and imposing a fine on him based on alleged breaches of safety standards involving the goods. It also disbelieved his claims about making petitions to government bodies, consulting a lawyer about his grievances, being detained by authorities in China and that his business had ceased to operate because of those events. 8 The Tribunal found that the applicant's entire account in respect of his claims to protection had been fabricated and there was no credible evidence that he had suffered harm of any kind in China, or that the Chinese authorities or anyone else in China were seeking, or would seek, to harm him. Accordingly, the Tribunal rejected his claims, both pursuant to s 36(2)(a) and (aa) of the Migration Act 1958 (Cth). The proceeding before the trial judge 9 The applicant raised two grounds in his application for review to the Federal Circuit Court, namely that the Tribunal, first, had made a jurisdictional error because his claims had been "doubted without substantive evidence and thus some reasoning was wrong" and, secondly, had not considered his claims fairly because it had ignored the danger he would face upon return to China. 10 As my summary of the Tribunal's findings have indicated, his Honour was entitled to come to the conclusion that those grounds failed. The trial judge noted that he had invited the applicant to make oral submissions, but that he declined to make any. I can see no error in his Honour's consideration of the applicant's grounds or in the orders that he made dismissing the application below with costs. This application 11 The applicant has not attended Court today. In any event, this is not a case in which, on the material before me, any extension of time could or should be granted. The applicant's case has no substance, at least on the limited material before me, and therefore there is no reason to deprive the Minister of his vested right to retain the benefit of the judgment of the Federal Circuit Court: Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J, and 539-543 [66] per Kirby J; R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F per Lord Denning MR. 12 In my opinion, the decision of the trial judge is not attended by sufficient, or any, doubt to warrant the grant of leave, and no substantial injustice will result from a refusal of leave: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. 13 Accordingly, I will refuse the extension of time and order the applicant to pay the Minister's costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 31 January 2018