Borra v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] FCA 1215

FEDERAL COURT OF AUSTRALIA

Borra v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1215

Citation:

Borra v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1215

Appeal from:

Borra v Minister for Immigration [2013] FCCA 1216

Parties:

NAVEEN BORRA v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

File number:

VID 1021 of 2013

Judge:

TRACEY J

Date of judgment:

18 November 2013

Catchwords:

PRACTICE AND PROCEDURE – notice of objection to competency – application for extension of time to appeal refused by Federal Circuit Court under s 477(1) of the Migration Act 1958 (Cth) – jurisdiction of the Federal Court of Australia – operation of s 476A(3) of the Migration Act 1958 (Cth) – no jurisdiction to entertain appeal – appeal dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth) s 24

Migration Act 1958 (Cth) ss 477, 476A

Cases cited:

Borra v Minister for Immigration [2013] FCCA 1216 – cited

Date of hearing:

18 November 2013

Place:

Melbourne

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

5

Counsel for the Appellant:

The Appellant appeared in person

Counsel for the First Respondent:

Mr D Brown

Solicitor for the First Respondent:

Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1021 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

NAVEEN BORRA
Appellant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	18 NOVEMBER 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the proceeding.

3.The title of the first respondent be changed to ‘Minister for Immigration and Border Protection’.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1021 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

NAVEEN BORRA
Appellant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	18 NOVEMBER 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court a notice of appeal, filed by the appellant on 25 September 2013, in which he seeks to appeal from a decision of the Federal Circuit Court (“the FCC”).  The respondent Minister has filed a notice of objection to competency.  The ground of the objection is that the Court lacks jurisdiction to entertain the purported appeal.  It is necessary and convenient that the issues raised by that notice should be dealt with immediately.

2. In October 2010 Mr Borra applied for a Student (Temporary) (Class TU) visa. That application was refused by a delegate of the Minister on 8 February 2011. Mr Borra appealed from this decision to the Migration Review Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision. Although the Tribunal’s decision was handed down on 7 June 2012, Mr Borra did not apply to the FCC for judicial review of the decision until 22 March 2013. This was some eight months after the time prescribed by s 477(1) of the Migration Act 1958 (Cth) (“the Act”) for the making of such applications had expired. It was, as a result, necessary for Mr Borra to obtain an enlargement of time within which he might bring his application before that application could proceed in the FCC. Following a hearing on 28 June 2013 Judge Burchardt refused the application for an extension of time: see Borra v Minister for Immigration [2013] FCCA 1216. That is the order from which Mr Borra now purports to appeal.

3. Mr Borra’s application to the FCC for an enlargement of time was made pursuant to s 477(2) of the Act. That sub-section empowers the FCC to enlarge time within which applications for judicial review of decisions of the Tribunal may be made if certain conditions are satisfied. The order from which Mr Borra now seeks to appeal was made under this sub-section.

4. This Court only has such appellate jurisdiction as is conferred on it by statute. The principal source of that jurisdiction is s 24 of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”). Section 476A(3) of the Act deprives the Court of jurisdiction which it would otherwise have under s 24 in matters such as the present. The sub-section provides:

   “(3) 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); or

   (b)… ”

5. It follows that this Court does not have jurisdiction to entertain Mr Borra’s purported appeal.  The objection to competency must therefore be upheld and the appeal dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        18 November 2013