CCQ15 v Minister for Immigration and Border Protection

[2017] FCA 1324

FEDERAL COURT OF AUSTRALIA

CCQ15 v Minister for Immigration and Border Protection [2017] FCA 1324

Appeal from:	Application for extension of time: CCQ15 v Minister for Immigration & Anor [2017] FCCA 1859
File number(s):	VID 865 of 2017
Judge(s):	DAVIES J
Date of judgment:	30 October 2017
Catchwords:	MIGRATION – Application for an extension of time; no discernible error in the Tribunal’s decision.
Legislation:	Migration Act 1958 (Cth)
Date of hearing:	30 October 2017
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	6
Counsel for the Applicant:	The Applicant appeared in person with the assistance of an interpreter
Counsel for the Respondents:	Mr O Young

ORDERS

VID 865 of 2017

BETWEEN:

CCQ15

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	DAVIES J
DATE OF ORDER:	30 OCTOBER 2017

THE COURT ORDERS THAT:

1.The application for an extension of time filed 3 August 2017 be dismissed.

2.The Applicant pay the costs of the first respondent, such costs to be taxed in default of an agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1. The applicant has applied for an extension of time in which to appeal from the orders of the Federal Circuit Court of Australia (“the FCC”) made on 11 July 2017 dismissing the applicant’s application for judicial review of the decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection Visa.

2. The application for judicial review was filed outside the time limit prescribed by s 477(1) of the Migration Act1958 (Cth) (“the Act”). Pursuant to s 477(1), the application for judicial review had to be filed within 35 days of the date of the Tribunal’s decision. The application was only filed seven days beyond the 35 day deadline, but because it was filed out of time, the applicant required an extension of time in which to file his application for judicial review.

3. Pursuant to s 477(2) of the Act, the FCC had the power to extend the 35 day period if it considered it appropriate and was satisfied that it was in the interests of the administration of justice to make the order. Section 477(2) provides that:

   The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

4. The FCC was not satisfied with the applicant’s explanation for the delay in filing his application and considered that his explanation was not sufficient, of itself, to extend the time for the filing of the application pursuant to s 477(2) of the Act. The FCC also considered that the proposed application for judicial review did not have sufficient prospects of success to warrant an extension of time being granted. The FCC accordingly dismissed the application to extend time and dismissed the application filed on 16 October 2015 with costs.

5. The applicant seeks to appeal the dismissal of his application. He requires an extension of time from the Court in which to bring that application because he is again out of time to make any application. There is no utility in granting an extension of time because of s 476A(3) of the Act. Section 476A(3) provides as follows:

   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)a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).

6. By a combined operation of ss 476A(3) and 477(2) of the Act, no appeal lies to this Court from the FCC’s decision to refuse the applicant’s application to extend time. Accordingly, the application for an extension of time filed 3 August 2017 must be dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.

Associate:

Dated:        30 October 2017