Federal Court Rejects Appeal Over Judicial Review Time Extension

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

CIP16 v Minister for Immigration and [NAME] Protection [2019] FCA 640 Appeal from: CIP16 v Minister for Immigration and [NAME] Protection [2019] FCCA 17

File number: WAD 59 of 2019

Judge: JACKSON J

Date of judgment: 7 May 2019

Catchwords: MIGRATION - appeal from order of Federal Circuit Court refusing extension of time to apply for judicial review - no jurisdiction for Federal Court to hear appeal

Legislation: Federal Court of Australia Act 1976 (Cth) s 24 Migration Act 1958 (Cth) ss 476A, 477

Cases cited: [NAME] v Minister for Immigration and [NAME] Protection [2017] FCA 1316

Date of hearing: 7 May 2019

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 11

Counsel for the Appellant: [redacted]

Counsel for the First Respondent: [redacted]

Solicitor for the First Respondent: [redacted]

Counsel for [RESPONDENT] Respondent: [redacted]

ORDERS WAD 59 of 2019

BETWEEN: [APPELLANT]16 Appellant

AND: [APPELLANT] FOR IMMIGRATION AND [NAME] PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL [RESPONDENT] Respondent

JUDGE: JACKSON J DATE OF ORDER: 7 MAY 2019

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the first respondent's costs of the appeal, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J: 1 The appellant is a citizen of Ethiopia who arrived in Australia as the holder of a Prospective Marriage Visa. That visa ceased to be valid on 9 February 2012. On 3 October 2014 the appellant applied for a protection visa, claiming a fear of harm if he were to return to Ethiopia. 2 A delegate of the first respondent (the Minister) refused the application for a protection visa on 19 February 2015. The appellant applied for review of that decision to the Refugee Review Tribunal. That tribunal was abolished with effect from 1 July 2015, and under transitional provisions, the application was taken to have been made to the Administrative Appeals Tribunal ([NAME]). On 30 June 2016, the [NAME] affirmed the delegate's decision to refuse the appellant a protection visa. 3 The appellant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision on 23 August 2016. That was 54 days after the date of the decision. Under s 477(1) of the Migration Act 1958 (Cth) (the [NAME]), the application to review the [NAME]'s decision was required to be made within 35 days of the decision. Therefore the appellant needed an extension of time under s 477(2) of the [NAME]. 4 The primary judge heard the application to extend time on 30 May 2018. On 16 January 2019 his Honour ordered that the application for an extension of time in which to file an application for judicial review be dismissed. His Honour also refused an extension of time in which to file an affidavit which the appellant had sworn on 7 May 2018, made an order amending the name of the Minister in the proceedings, and ordered that the appellant pay the Minister's costs in the sum of $5,000. 5 The notice of appeal commencing the present proceedings says that the appellant appeals 'from the whole of the judgment and all of the orders'. The grounds are: '1. wrong decision' and '2. not fair decision'. 6 The Minister has lodged a notice of objection to the competency of the appeal. The basis of the objection is that an appeal may not be brought to this Court from an order of the Federal Circuit Court refusing to make an order extending the period within which an application for judicial review of a migration decision may be made. 7 It is clear that this Court has no jurisdiction to entertain an appeal from the order dismissing the application for an extension of time to apply for judicial review to the Federal Circuit Court. The jurisdiction of the Federal Court to hear appeals from decisions of the Federal Circuit Court is found in s 24 of the Federal Court of Australia Act 1976 (Cth). However s 476A(3) of the [NAME] relevantly provides: Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from: (a) a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); … [ADDRESS] has interpreted that provision as excluding its jurisdiction in appeals such as the present proceedings on numerous occasions: see eg [NAME] v Minister for Immigration and [NAME] Protection [2017] FCA 1316 at [3] and the cases cited there. 9 Since this Court has no jurisdiction to hear the appeal, it would not be appropriate for me to go into the merits of the primary judge's decision not to extend time. I will, however, note that the primary judge gave those merits careful consideration in the reasons for refusing the extension of time, and in the course of that had regard to the underlying merits of the appellant's claim to a protection visa. 10 The other orders from which the appellant seeks to appeal are ancillary to the matter in which the Court has no jurisdiction, so this Court has no jurisdiction to entertain any appeal from those orders either. 11 The notice of objection to competency is upheld and the appeal must be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson.

Associate: Dated: 7 May 2019