CCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: ABRAHAM J
• Judgment Date: 25 February 2020
• Neutral Citation: [2020] FCA 183
• Date: 25 February 2020

FEDERAL COURT OF AUSTRALIA

CCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 183

Appeal from:	Application for an extension of time and leave to appeal from: CCC18 v Minister for Home Affairs & Anor [2019] FCCA 2688
File number:	WAD 545 of 2019
Judge:	ABRAHAM J
Date of judgment:	25 February 2020
Catchwords:	PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – no merit in case – applications refused
Legislation:	Federal Court of Australia Act 1976 (Cth), s 24(1A) Federal Circuit Court Rules 2001 (Cth), r 13.03C(1)(c) Federal Court Rules 2011 (Cth), r 35.13
Cases cited:	BBW15 v Minister for Immigration and Border Protection [2016] FCA 128 BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 Parker v The Queen [2002] FCAFC 133 Samsung Electronics Co. Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 SZTBO v Minister for Immigration and Border Protection [2014] FCA 269 SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 Tran v Minister for Immigration and Border Protection [2014] FCA 533 WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114
Date of hearing:	21 February 2020
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	39
Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the First Respondent:	Mr T Lettenmaier of Sparke Helmore Lawyers
Counsel for the Second Respondent:	The second respondent filed a submitting notice, save as to costs

ORDERS

		WAD 545 of 2019
BETWEEN:	CCC18 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE:	ABRAHAM J
DATE OF ORDER:	25 February 2020

THE COURT ORDERS THAT:

1. The application for an extension of time in which to file an appeal is refused.

2. The applicant is to pay the costs of the first respondent in the sum of $2500.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1. The applicant, a citizen of Sri Lanka, arrived on Cocos Island as an unauthorised maritime arrival on 3 September 2012. On 25 May 2017, he applied for a Safe Haven Enterprise Visa (SHEV), which was refused by a delegate of the Minister on 16 October 2017. On 4 April 2018, the Immigration Assessment Authority (Authority), affirmed the delegate’s decision. The applicant sought a review of that decision but on 10 April 2019, when the matter was listed for hearing in the Federal Circuit Court (FCC), the applicant did not attend and pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) his application was dismissed. On 7 May 2019, the applicant applied to the FCC for his matter to be reinstated, but on 23 September 2019, that application was refused: CCC18 v Minister for Home Affairs & Anor [2019] FCCA 2688 (CCC18).

2. This matter involves two applications: (1) as the application seeking leave was filed 11 days out of time, an extension of time to file the application to challenge the decision to refuse the reinstatement (Federal Court Rules 2011 (Cth) r 35.13); and (2) if that is granted, as the challenged decision is interlocutory, an application for leave to bring this appeal (Federal Court of Australia Act 1976 (Cth) s 24(1A)): see for example, BBW15 v Minister for Immigration and Border Protection [2016] FCA 128 at [5] per Flick J.

3. The applicant appears unrepresented in this Court (as he was in the FCC), assisted by an interpreter.

4. At the hearing the applicant applied for an adjournment to enable him to attempt to get legal representation. That application was opposed by the respondent. For the reasons given below, that application was refused.

5. The applicant has filed an affidavit in support of the application for an extension of time and leave to appeal. In summary, he gives evidence that he is appealing because he believes that his case was not heard fairly by the FCC; that as a lay person he did not have much legal knowledge and had to get legal assistance to file his appeal, but did not find any; he filed his appeal on the last day for the application but it was not accepted by the Court as it was not in the right form; and that from that day he tried to find a lawyer but did not succeed and therefore he was late in lodging the application.

6. The affidavit also contained what the applicant described as the “reason to appeal” which was described as follows (as written):

I believe Primary Judge did not refer to my whole case and documents before dismissing my case. Some of the original statements I made to the Immigration at the first arrival not produced to the Courts.

The Second Respondent did not have those statements or taped recorder to consider prior to making the decision to dismiss my application.

7. In the application for an extension of time and leave to appeal the ground of appeal was identified in these terms (as written):

The primary Judge and the second Respondent did not find that the applicant was procedural fairness by not taking into consideration of recordings of the statement at the time of my entry to Australia, verbal responses and so it is a Jurisdictional error and the laws of natural justice was not followed.

8. The respondent opposed the extension of time, and the grant of leave.

9. For the reasons below, the application for an extension of time in which to file an appeal is refused. I note that in any event, leave to appeal would have also been refused.

Authority’s decision

10. It is unnecessary at this stage to recite the reasons for the Authority’s decision, they are accurately summarised by the FCC: CCC18 at [27] to [49].

Federal Circuit Court

11. The history of these proceeding in the FCC and the content of the reinstatement application are accurately summarised by the FCC: CCC18 at [50] to [59].

12. The FCC referred to the correct test in relation to determining the question of reinstatement, and then proceeded to consider the evidence and issues in this case. The FCC found that while the applicant’s explanation for the month long delay in filing the reinstatement application was satisfactory, his explanation for non-attendance at the hearing of the appeal was not, and that this weighed against reinstatement. The primary judge found that the absence of specific prejudice to the respondent weighed in favour of reinstatement. The FCC addressed the issue of merit and considered the applicant’s arguments on the grounds of appeal. Having done so, the primary judge concluded that there was no merit in the substantive application and therefore, the matter should not be...