Dhaliwal v Minister for Immigration and Border Protection

[2017] FCA 1274

FEDERAL COURT OF AUSTRALIA

Dhaliwal v Minister for Immigration and Border Protection [2017] FCA 1274

Appeal from:

Application for extension of time: Dhaliwal & Anor v Minister for Immigration & Anor [2017] FCCA 2178

File number:

VID 908 of 2017

Judge:

PAGONE J

Date of judgment:

30 October 2017

Catchwords:

MIGRATION – application for extension of time  - seeking appeal from order of Federal Circuit Court – no jurisdiction for Federal Court to hear appeal from order refusing extension of time  

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AZACM v Minister for Immigration and Citizenship [2013] FCA 710

Bandi v Minister for Immigration and Border Protection [2014] FCA 1290

BZABK v Minister for Immigration and Citizenship (2012) 205 FCR 83

MZYIZ v Minister for Immigration and Citizenship [2010] FCA 1449

MZYNW v Minister for Immigration and Citizenship [2012] FCA 150

SZOQJ v Minister for Immigration and Citizenship [2011] FCA 191

SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339

SZQYP v Hannigan [2012] FCA 723

MZZTJ v Minister for Immigration and Border Protection [2014] FCA 920

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:

3

Counsel for the First Applicant:

The first applicant appeared in person assisted by an interpreter

Counsel for the Second Applicant:

The second applicant did not appear

Solicitor for the First Respondent:

Mr G Priestley of Australian Government Solicitor

Counsel for the Second Respondent:

The second respondent submits save as to costs

ORDERS

VID 908 of 2017

BETWEEN:

PRABJHOT DHALIWAL

First Applicant

KANWARJIT SINGH

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	PAGONE J
DATE OF ORDER:	30 OCTOBER 2017

THE COURT ORDERS THAT:

1.The application be dismissed with costs to be taxed unless otherwise agreed.

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

REASONS FOR JUDGMENT

PAGONE J:

1. This is an application for an extension of time to file an appeal from the decision of Judge McNab made on 13 July 2017. The application to his Honour had itself been an application to extend the time to make an application pursuant to s 477(2) of the Migration Act 1958 (Cth) (“the Act”). His Honour dismissed that application on the grounds that there was no utility in granting the extension of time because there was no reasonable prospect of the appellants succeeding in a challenge to a decision by the Tribunal in respect of which they were seeking leave to appeal.

2. This Court has no jurisdiction to hear an appeal from a decision by the Federal Circuit Court refusing to make an order under s 477(2) of the Act. Section 476A(3)(a) of the Act 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);

   […]

   It follows that the Federal Court does not have jurisdiction to hear an appeal from the order of Judge McNab made on 13 July 2017: AZACM v Minister for Immigration and Citizenship [2013] FCA 710 at [11]; Bandi v Minister for Immigration and Border Protection [2014] FCA 1290 at [8]; BZABK v Minister for Immigration and Citizenship (2012) 205 FCR 83 at [30], [36]–[38]; MZYIZ v Minister for Immigration and Citizenship [2010] FCA 1449 at [4]; MZYNW v Minister for Immigration and Citizenship [2012] FCA 150 at [8]–[9]; SZOQJ v Minister for Immigration and Citizenship [2011] FCA 191 at [8]–[9]; SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 at [7]; SZQYP v Hannigan [2012] FCA 723 at [18]–[19]; MZZTJ v Minister for Immigration and Border Protection [2014] FCA 920. Accordingly, there is no utility in granting an extension of time to file an appeal from a decision from which an appeal cannot be brought to this Court.

3. Accordingly the application will be dismissed with costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.

Associate: 

Dated:        30 October 2017