CWF19 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FCA 881

FEDERAL COURT OF AUSTRALIA

CWF19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 881   

Appeal from:

CWF19 v Minister for Home Affairs [2019] FCCA 3361

File number:

VID 685 of 2020

Judgment of:

SNADEN J

Date of judgment:

31 July 2023

Catchwords:

MIGRATION – application for extension of time and leave to appeal from decision of the (then) Federal Circuit Court of Australia – where primary judge dismissed application for an extension of time – applicant sought to appeal from that judgment well out of time – whether extension of time should be granted – whether prospective appeal has merit sufficient to warrant an extension – default of appearance at hearing – dismissal of application for want of appearance – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 476A, 477

Federal Court Rules (2011) (Cth) r 35.33

Cases cited:

 CWF19 v Minister for Home Affairs & Anor [2019] FCCA 3361

Division:

General Division

Registry:

Victoria

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

10

Date of hearing:

31 July 2023

Counsel for the Applicant:

The applicant did not appear

Solicitor for the First Respondent:

Mr A Cunynghame of Sparke Helmore

Counsel for the Second Respondent:

The second respondent filed a submitting notice, save as to costs

ORDERS

VID 685 of 2020

BETWEEN:

CWF19

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	SNADEN J
DATE OF ORDER:	31 JULY 2023

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application for an extension of time and leave to appeal be dismissed.

3.The applicant pay the costs of the first respondent fixed in the amount of $4,000.

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

REASONS FOR JUDGMENT

SNADEN J:

1. By an application dated 16 October 2020, the applicant moves the court for an extension of time within which to appeal (or seek leave to appeal, if leave be necessary) from a judgment of the Federal Circuit Court of Australia (the “FCCA”, as it was once known).

2. The application was scheduled for hearing on Monday, 31 July 2023.  When the matter was called, the applicant was not present in court.  The first respondent sought orders under r 35.33 of the Federal Court Rules (2011) (Cth) (the “Rules”) that it be dismissed with costs in default of his appearance.  Those orders were made and I indicated that I would publish very brief reasons in respect of them.  Those reasons follow.

3. Quite apart from his failure to appear at the hearing, the applicant’s application was vulnerable to dismissal on substantive grounds—indeed, to the point of inevitability.  The primary judgment in respect of which the application was made itself concerned an application for an extension of time.  The background may briefly be stated.  In 2016, the applicant made an application for a visa under the Migration Act 1958 (Cth) (the “Act”).  It was refused and that refusal was made the subject of review before the second respondent.  By that review, the refusal was affirmed.  That (the “IAA Affirmation”) occurred on 20 June 2017.

4. More than two years later—and apparently in the shadows of attempts to have him removed from Australia—the applicant sought to file in the FCCA an application for judicial review of the IAA Affirmation. That application came well after the expiry of the 35‑day deadline that s 477(1) of the Act prescribes for such applications. Accordingly, the applicant sought an extension under s 477(2) of the Act to enable his judicial review application to proceed.

5. That application was the subject of a hearing before the FCCA.  On 21 November 2019, the learned primary judge refused it and gave reasons for doing so:  CWF19 v Minister for Home Affairs & Anor [2019] FCCA 3361 (Judge Blake).

6. The present application was filed in this court nearly two years later (well after the expiry of the relevant time limit prescribed by the Rules).  It was supported by an affidavit that the applicant affirmed on 16 October 2020, the content of which need not here be recited.  A draft notice of appeal was also provided.

7. The considerations that inform the court’s discretion to grant an extension of time are notorious and, for reasons that will soon become obvious, needn’t here be rehearsed in any detail.  Of central importance is the self‑evident proposition that an extension will generally not be granted if the proposed appeal in respect of which it is sought has no prospect of succeeding.

8. Here, that was the case. It bears repeating that the judgment of the FCCA from which the applicant hopes to appeal involved a refusal to grant an extension of time to apply for judicial review of the IAA Affirmation. There is no right of appeal to this court from such a decision: the Act, s 476A(3). Were an extension of time to be granted, the resultant appeal would not have limited prospects of success; rather, it would have no prospect of success.

9. For that reason alone, the application was ripe for dismissal.  As it happens, it was dismissed in any event for want of the applicant’s appearance at the hearing.

10. The respondent sought an order for costs fixed in the amount of $4,000.00.  That sum is reasonable and proportionate to the nature and complexity of the application.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.

Associate:  

Dated:       31 July 2023