Cau17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 1422
•17 November 2023
FEDERAL COURT OF AUSTRALIA
CAU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1422
Appeal from: CAQ17 v Minister for Immigration [2019] FCCA 1807 File number(s): VID 522 of 2022 Judgment of: O’CALLAGHAN J Date of judgment: 17 November 2023 Catchwords: MIGRATION – application for extension of time to appeal from orders of Federal Circuit Court of Australia – where applicants had already exercised appeal rights before Full Court of the Federal Court of Australia and High Court of Australia – application incompetent as attempt to re-litigate past and finalised proceedings – application dismissed Cases cited: BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 115
CAQ17 v Minister for Immigration [2019] FCCA 1807
CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477
CAQ17 v Minister for Immigration and Border Protection [2020] HCASL 111
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 23 Date of hearing: 16 November 2023 Counsel for the Second Applicant: The Second Applicant appeared in person Counsel for the Third Applicant: The Third Applicant appeared in person Solicitor for the First Respondent: Mr A Gardner of Mills Oakley Solicitor for the Second Respondent Mills Oakley Counsel for the Third Respondent: The Third Respondent appeared in person Counsel for the Fourth Respondent: The Fourth Respondent appeared in person ORDERS
VID 522 of 2022 BETWEEN: CAU17
First Applicant
CAT17
Second Applicant
CAS17
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
CAQ17 (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
O’CALLAGHAN J
DATE OF ORDER:
17 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The second and third applicants’ application for an extension of time to file a notice of appeal from the orders of the Federal Circuit Court of Australia made on 28 June 2019 be dismissed.
2.The second and third applicants pay the costs of the Minister, to be assessed in the absence of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Ex tempore
(Revised from transcript)O’CALLAGHAN J:
By an application filed on 8 September 2022, the first, second and third applicants sought an extension of time to appeal from the orders of a judge of the then-Federal Circuit Court of Australia made on 28 June 2019 in CAQ17 v Minister for Immigration [2019] FCCA 1807. The primary judge dismissed an application for judicial review which sought to challenge a decision of the Immigration Assessment Authority (IAA) dated 21 April 2017.
On 9 November 2023, I made orders by consent effecting the first applicant’s discontinuance of the proceeding.
The remaining applicants, the second and third applicants, were parties to an appeal in the Federal Court of Australia (VID792 of 2019) and an application for special leave to the High Court of Australia (M159 of 2019).
Both proceedings sought to appeal against the orders of the Federal Circuit Court. Both were dismissed. See CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477 and CAQ17 v Minister for Immigration and Border Protection [2020] HCASL 111.
Because the remaining applicants have already exercised their appeal rights in respect to the orders of the primary judge, the proposed appeal is incompetent and an abuse of process as an attempted re-litigation of past, finalised proceedings. See BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 115 at 121 [33] (Allsop CJ, Burley and O’Callaghan JJ).
At a hearing on 16 November 2023, the first respondent (the Minister) moved on a notice of objection to competency filed on 28 September 2022 and submitted that the application for an extension of time should be dismissed with costs.
The background facts are as follows.
The applicants are citizens of Sri Lanka. The second applicant (CAT17) was born on 24 August 2020. The third applicant (CAS17) was born on 14 January 1999. The second and third applicants are brothers. The third respondent (CAQ17) is the father of the second and third applicants. The fourth respondent (CAR17) is the mother of the second and third applicant and the wife of the third respondent.
On 29 March 2016, the applicants applied for Safe Haven Enterprise Visas (SHEV).
On 1 March 2017, a delegate of the Minister refused to grant the applicants the SHEV.
On 6 March 2017, the decision was referred to the IAA.
On 21 April 2017, the IAA affirmed the decision of the delegate not to grant the applicants the SHEV.
On 11 May 2017, the applicants applied to the Federal Circuit Court for judicial review of the that decision.
On 21 May 2019, the parties attended a hearing before a judge of the Federal Circuit Court and, on 28 June 2019, the judge made orders dismissing the application.
On 26 July 2019, the applicants appealed against those orders to the Federal Court in proceeding VID792 of 2019. That appeal was heard by a Full Court comprised of Mortimer (as the Chief Justice then was), Derrington and Steward JJ.
On 25 November 2019, the Full Court dismissed the appeal with costs.
On 16 December 2019, the applicants applied for special leave to appeal from the decision of the Full Court and, on 24 April 2020, that application was dismissed by the High Court.
In the proceeding before me, the applicants again purport to challenge the orders made by the primary judge on 28 June 2019. As the Minister’s submissions pointed out, the draft notice of appeal refers to “orders of the Federal Circuit Court of Australia in matter given on 25 November 2019”. (This is an obvious typographical error because that is the date that the orders were made by the Full Court).
As I explained at the hearing, the appeals from the orders made by the primary judge have already been dismissed by both the Full Court and the High Court. I should add by way of interpolation that the hearing of this proceeding was delayed because I made orders by consent adjourning the hearing pending the handing down of reasons by the Full Court in BKW17.
The issue raised by BKW17 in relation to litigation guardianship is an issue that only affected the first applicant and, as I have explained, she is no longer a party to the proceeding.
On 8 March 2023, the applicants’ former solicitors withdrew their representation and, on 25 May 2023, the Minister’s solicitors wrote to the applicants inviting them to discontinue the application.
In those circumstances, as I endeavoured to explain orally at the hearing and in my reasons, the applicants have already exercised their appeal rights in respect of the orders of the primary judge and it follows that the present application is incompetent because it is an attempt to re-litigate past and finalised proceedings.
For those reasons, I will order that the application made by the second and third applicants for an extension of time to appeal from the orders of the Federal Circuit Court of Australia made on 28 June 2019 be dismissed. I will order that the second and third applicants pay the costs of the Minister to be assessed in the absence of agreement.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O’Callaghan. Associate:
Dated: 17 November 2023
SCHEDULE OF PARTIES
VID 522 of 2022 Respondents
Fourth Respondent:
CAR17
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4
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