CYD16 v Minister for Immigration and Border Protection

[2019] FCA 213

FEDERAL COURT OF AUSTRALIA

CYD16 v Minister for Immigration and Border Protection [2019] FCA 213

Appeal from:

Application for an extension of time: CYD16 v Minister for Immigration & Anor [2017] FCCA 610

File number:

NSD 1470 of 2018

Judge:

WHEELAHAN J

Date of judgment:

22 February 2019

Catchwords:

MIGRATION – application for an extension of time to appeal from decision of a judge of a Federal Circuit Court of Australia – where decision at first instance was interlocutory decision refusing extension of time under s 477(2) of the Migration Act 1958 (Cth) – where s 476A(3)(a) of the Act provides that an appeal may not be brought to the Federal Court of Australia – extension of time would be futile – application dismissed.

Legislation:

Federal Court of Australia Act 1976 (Cth), s 24(1)(d)

Migration Act 1958 (Cth) s 476A, s 477(2)

Date of hearing:

22 February 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

5

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Ms N Johnson

Solicitor for the First Respondent:

Mills Oakley

Solicitor for the Second Respondent:

The second respondent filed a submitting appearance

ORDERS

NSD 1470 of 2018

BETWEEN:

CYD16

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	WHEELAHAN J
DATE OF ORDER:	22 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The application for extension of time filed on 16 August 2018 be dismissed.

2.The applicant pay the first respondent’s costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1. This is an application seeking an order for an extension of time within which to appeal an order of the Federal Circuit Court of Australia dated 29 March 2017: CYD16 v Minister for Immigration & Anor [2017] FCCA 610. The Federal Circuit Court dismissed the applicant’s application seeking an extension of time under s 477(2) of the Migration Act 1958 (Cth) to seek judicial review of a decision of the Immigration Assessment Authority (the Authority), which had affirmed a decision of a delegate of the Minister to refuse the applicant a protection visa.

2. On 16 August 2018, the applicant filed an application for an extension of time within which to seek leave to appeal, and for leave to appeal. The application for an extension of time was supported by an affidavit of the applicant which deposed to ignorance that he could appeal to the Federal Court, and which referred to a claim that because the applicant had arrived at the Curtin Detention Centre before 1 June 2013, he was entitled to have the rejection of his application for a visa reviewed by the Administrative Appeals Tribunal rather than the Authority.

3. The Minister filed an objection to the competency of the application for an extension of time and leave to appeal. The Authority filed a notice submitting to any order of the court, save as to costs.

4. Section 24(1)(d) of Federal Court of Australia Act 1976 (Cth) relevantly provides that this Court has jurisdiction to hear and determine appeals from judgments of the Federal Circuit Court of Australia exercising original jurisdiction. However, s 476A(3) of the Migration Act 1958 (Cth) provides as follows:

   (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)

   …

5. In this case, the judge below refused to make an order under s 477(2) of the Migration Act. It follows that the applicant’s application to this court for an extension of time within which to appeal is futile, because this court does not have jurisdiction to hear the proposed appeal. Accordingly, the application must be dismissed with costs.

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

Associate:

Dated:       22 February 2019