BRGAO v Minister for Immigration & Citizenship [2009] FCA 126 (6 February 2009)

Last Updated: 20 February 2009

FEDERAL COURT OF AUSTRALIA

BRGAO v Minister for Immigration & Citizenship [2009] FCA 126

BRGAO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
QUD 423 of 2008

SPENDER J
6 FEBRUARY 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 423 of 2008

BETWEEN:

BRGAO Applicant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	6 FEBRUARY 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The extension of time is refused
2. The applicant pay the costs of and incidental to the proceedings, to be taxed if not agreed.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 423 of 2008

BETWEEN:

BRGAO Applicant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SPENDER J
DATE:	6 FEBRUARY 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. I will refuse the extension of time for these reasons.
2. In these proceedings, the applicant/appellant seeks leave to file and serve a Notice of Appeal from a judgment of Wilson FM given on 21 November 2008. The extension of time is necessary as the 21 day period referred to in O 52, r 15(1) of the Federal Court Rules expired on 12 December 2008 and this application was not filed until 19 December 2008. It is curious that the application for leave to file and serve out of time was filed on 19 December 2008, yet it bears a certification dated 20 December 2008, signed by counsel now acting for, and then acting for, the applicant.
3. Ground 1 in that Notice of Appeal is in these terms:

1. It is submitted that the learned judge has failed to take into account relevant considerations with respect to the refusal of the adjournment application at paragraph 3. The fact of the matter is as follows ...

4. It then makes reference in a number of bullet points to a Mr Tran who had engaged the services of a migration agent, who was unrepresented at the Refugee Review Tribunal (the RRT) hearing and so on: all of which are quite irrelevant to the present matter because the applicant is not named Tran, was represented by counsel in the hearing and there has been no involvement of a migration agent in his matters. The adjournment application at paragraph 3 is not a reference to paragraph 3 of Wilson FM’s reasons for judgment.
5. That paragraph sought to agitate three additional grounds.
6. The first was that the Tribunal took into account an irrelevant consideration of the applicant legally obtaining a passport and leaving China without difficulties, as evidencing the absence of a real fear of persecution.
7. The second alleged additional ground referred to the manner of the departure from the People’s Republic of China. The claim is made that the assessment of whether a protection visa ought properly to be allowed is to be assessed at the time of the application, not at the time the applicant left the country.
8. The third additional ground alleges procedural fairness based on the lack of impartiality on the part of the delegate’s decision-maker, none of which has any application to the present matter. It may be that the paragraph 3 relates to Mr Tran’s matter.
9. What is important is that the Notice of Appeal, filed on 19 December 2008, has a certification by his then and present counsel which is in these terms:

For the purposes of section 486I of the Migration Act 1958, I – [naming the lawyer]
certify that there are reasonable grounds for believing that this migration litigation (within the meaning of section 486K of that Act) has a reasonable prospect of success.

10. That certification is dated 20 December 2008 and the Notice of Appeal contains three grounds, none of which have any relevance at all to the present applicant’s case, either in the RRT or before the Federal Magistrate.
11. In the relation to a refusal of an adjournment, such a decision is interlocutory and leave is required if an appeal is to be sought from such a refusal.
12. There is, it appears, no appeal from the refusal by Wilson FM of an application for an adjournment. An application for an adjournment had been made so that a transcript of the RRT could be obtained. That was refused, because no transcript had previously been requested, despite the matter having twice been before the Federal Magistrates Court for directions.
13. There is at present no ground of appeal seeking to challenge the correctness of that adjournment proceeding. But even if there were, it seems to me that, particularly since no transcript has been obtained to this day, it is difficult to see how it was erroneous in law for the Federal Magistrate to decline an adjournment for that purpose on the basis that a transcript was required in the interests of justice.
14. In Parker v The Queen [2002] FCAFC 133 at [6], the Full Court endorsed the comments of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, where, considering an application for leave to extend time, his Honour said:

(1) applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

(2) action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

(3) any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

(4) however, the mere absence of prejudice is not enough to justify the grant of an extension; and

(5) the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

15. In respect of the reasonable explanation for delay referred to in (1) and (2) of those principles, O 52 r 15(2) requires special reasons. As to the meaning of special reasons, the observations of the Full Court in Jess v Scott (1986) 12 FCR 187 at 195 are relevant.
16. In this case, the applicant said that the reason for the delay, short though it is, was because of financial constraints. The Full Court in QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] said:

... The only explanation for the delay in taking any step in this Court between that date and 14 May 2003 is the appellant’s failure to pay his solicitors’ fees. Without more, such a situation would not provide a reason for exempting a party from the application of the rules prescribing time limits. It cannot therefore provide a sufficient explanation for the continuing delay on the part of an appellant for filing an application for leave to appeal.

17. That is the only reason advanced to explain the delay. It is not an acceptable explanation in the light of those authorities, nor does it satisfy the requirement of special reasons for the grant of an extension of time in O 52 r 15(2). It is not suggested that any prejudice by the grant of an extension of time to the Minister would be occasioned. But the obligation to provide special reasons has not been met, nor an explanation for that delay (as properly understood) been given.
18. I would not be minded to refuse leave on the basis of the considerations thus far expressed if there were any prospects of a successful appeal, should an extension of time been granted. I have heard from counsel as to whether there is any basis on which it could be said that there was an arguable case of error in the judgment of Wilson FM in this matter.
19. The principal argument advanced for error on the part of the Federal Magistrate is that there was a denial of procedural fairness, when the Tribunal did not permit the applicant further time to provide information and material which he said were material to his case. This matter was the subject of a very detailed and careful consideration by the Federal Magistrate, commencing at [17] and going through to the end of [26]. That material shows that there had been many promises made by the applicant that further material which the applicant said was important to his case would be provided.
20. The first promise of such provision of material is contained in the initial application itself. Many other instances are then referred to in those paragraphs of Wilson FM’s decision, which I will not set out, but which clearly demonstrate that there were repeated requests for the provision of further information, and in particular, a direction that the information should be received by the Tribunal by 20 June 2008, and if that material couldn’t be provided by that date, there should be an application in writing for an extension of time in which to provide that additional information.
    
21. No such provision of information or documents was made, nor any written request for an extension of time to do so, and I have to say that no further information or documents have been provided to this Court in support of the argument that there was a denial of procedural fairness, and that that denial occasioned injustice because the documents demonstrate a relevance to the applicant’s case.
22. I have looked carefully at the reasons of the Federal Magistrate in respect of the appeal to him and have concluded that there is no arguable case of error arising out of the Federal Magistrate’s judgment. For this central reason, in my judgment the application for leave to file a Notice of Appeal from the judgment of the Federal Magistrate out of time should not be granted.
23. I have to say it is a matter of real concern that the Notice of Appeal as filed, containing the wholly irrelevant material in that document, should have been certified by counsel for the applicant. The point of certification is to have the Court assured by the certification of a legal practitioner that the case is not spurious. The case certified by counsel related to circumstances involving a Mr Tran and is totally irrelevant to the present matter.
24. Nonetheless, for the reasons which I have earlier given, this is clearly a case where an extension of time should not be granted. My fundamental basis for that decision is that, on the merits, there is, in my judgment, no arguable case of error by the Federal Magistrate and therefore there would be no utility in the grant of an extension of time or leave to appeal.
25. I order that the applicant pay the costs of the respondent of and incidental to this application, to be taxed if not agreed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 19 February 2009

Counsel for the Applicant:	Mr S Nguyen
Solicitor for the Applicant:	Southside Lawyers
Counsel for the Respondents:	Ms A Wheatley
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	6 February 2009
Date of Judgment:	6 February 2009