FEDERAL COURT OF AUSTRALIA
BDA16 v Minister for Home Affairs [2019] FCA 85
Appeal from: BDA16 v Minister for Home Affairs [2018] FCCA 2370 File number(s): NSD 1734 of 2018 Judge(s): GRIFFITHS J Date of judgment: 6 February 2019 Catchwords: MIGRATION – application for leave to appeal from a decision of the Federal Circuit Court not to extend time under s 477(2) of the Migration Act 1958 (Cth) – notice of objection to competency based on absence of appellate jurisdiction due to the operation of s 476A(3)(a) of the Migration Act 1958 (Cth) upheld. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Federal Court of Australia Act 1976 (Cth) s 24(1)(d
Migration Act 1958 (Cth) ss 417, 424A(3)(b), 477(2), 476A(3)(a)
Cases cited: ALL16 v Minister for Immigration and Border Protection [2018] FCA 419
BCL16 v Minister for Immigration and Border Protection [2018] FCA 1870
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 417; 14 ALD 291
Mitco DB Pty Ltd v Chief Executive of Customs [1999] FCA 712
MZZGC v Minister for Immigration and Border Protection [2015] FCA 842
Re Commonwealth; ex parte Marks [2000] HCA 67; 177 ALR 491
Singh v Minister for Immigration and Border Protection [2017] FCA 1316
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
SZTUT v Minister for Immigration and Border Protection [2016] HCA Trans 150
Date of hearing: 6 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Solicitor for the Applicants: Mr R Turner of Turner Coulson Immigration Lawyers Solicitor for the Respondents: Mr J Hutton of Australian Government Solicitor ORDERS
NSD 1734 of 2018 BETWEEN: BDA16
First Applicant
BDB16
Second Applicant
BDC16 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
6 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The notice of objection to competency be upheld.
2.The application for leave to appeal dated 13 September 2018 be dismissed.
3.The applicants must pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J
The applicants seek leave to appeal from a decision dated 30 August 2018 by the Federal Circuit Court of Australia (FCCA). The FCCA refused an application to extend time to seek a judicial review of a decision of the then Refugee Review Tribunal (Tribunal). The Minister opposes the grant of leave to appeal and has also filed a notice of objection to competency dated 25 October 2018 on the basis that the FCCA’s decision not to extend time was made under s 477(2) of the Migration Act 1958 (Cth) (the Act) and such a decision is not able to be appealed to this Court because of the terms of s 476A(3)(a) of the Act.
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- Case
- [2019] FCA 85
- Decision Date
CaseChat Overview and Summary
The court determined that the jurisdictional bar was applicable, referencing precedents such as Singh v Minister for Immigration and Border Protection and BCL16 v Minister for Immigration and Border Protection. These cases established that the court's jurisdiction to hear an appeal does not depend on the merits of the case but rather on the statutory provisions governing such appeals. The applicants did not provide any basis for overcoming this jurisdictional bar, nor did they argue that the FCCA's judgment was affected by jurisdictional error. Consequently, the court found that it lacked the jurisdiction to entertain the appeal. Furthermore, the court considered it inappropriate to assess the potential success of the proposed grounds of appeal in the absence of jurisdiction.
During the oral argument, Mr Turner indicated that the applicants might seek judicial review of the FCCA’s decision. Mr Hutton responded that if such a review were to proceed, it should follow the usual judicial review process, and he would not comment on an unfiled application. Ultimately, the decision on the future course of action lay with the applicants. The court concluded that the Minister's notice of objection to competency should be upheld, and the applicants' application for leave to appeal should be dismissed for lack of jurisdiction. The applicants were also ordered to pay the Minister's costs.
Orders
Orders of the court
1. The notice of objection to competency be upheld.
2. The application for leave to appeal dated 13 September 2018 be dismissed.
3. The applicants must pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Minister’s submissions addressed the draft notice of appeal and the Minister’s notice of objection to competency. It is unnecessary to summarise them as they are reflected in my reasons below for upholding the notice of objection to competency and for dismissing the applicants’ application for leave to appeal. Consideration and determination As the Minister emphasised, while this Court can hear appeals from the FCCA under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), a jurisdictional bar is created by s 476A(3)(a) of the Act in respect of appeals from a judgment of the FCCA that “makes an order or refuses to make an order under subsection 477(2)”. This jurisdictional bar has been applied in numerous cases involving attempted appeals from decisions of the FCCA to refuse to extend time under that statutory provision, including Singh v Minister for Immigration and Border Protection [2017] FCA 1316 (Singh) and, more recently, in BCL16 v Minister for Immigration and Border Protection [2018] FCA 1870 (BCL16). Having regard to these authorities, it is unnecessary to consider the underlying merits of the proceeding in the FCCA because they are irrelevant to the question whether this Court has jurisdiction to hear an appeal (see Singh at [4] per Pagone J). I accept the Minister’s submission that the applicants have failed to provide any foundation for grounding this Court’s appellate jurisdiction, nor do they claim that the primary judge’s judgment was affected by jurisdictional error (SZTUT v Minister for Immigration and Border Protection [2016] HCA Trans 150 per Gageler J). It is not appropriate for this Court to engage with the question whether the proposed grounds of appeal have reasonable prospects of success in circumstances where the Court lacks jurisdiction to entertain the proceeding (see ALL16 v Minister for Immigration and Border Protection [2018] FCA 419 at [23]-[24] per Gleeson J). During oral argument, Mr Turner, who appeared for the applicants, foreshadowed that he may seek to challenge the FCCA’s decision by way of judicial review. Mr Hutton, who appeared for the Minister, said that if this were to occur, it should happen in the normal way and that he was not in a position to respond to an unfiled proposed application for judicial review. It is a matter for the applicants to decide what future course they may adopt. Conclusion For these reasons, the Minister’s notice of objection to competency should be upheld and the applicants’ application for leave to appeal should be dismissed for lack of jurisdiction. The applicants must pay the Minister’s costs.