EGV18 v Minister for Home Affairs

[2019] FCCA 239

FEDERAL COURT OF AUSTRALIA

EGV18 v Minister for Home Affairs [2019] 1348

Appeal from:

EGV18 v Minister for Home Affairs & Anor [2019] FCCA 239

File number:

NSD 367 of 2019

Judge:

DAVIES  J

Date of judgment:

21 August 2019

Catchwords:

MIGRATION – application for leave to appeal from Federal Circuit Court – appeal incompetent by reason of s 476A(3) of Migration Act 1958 (Cth) – application dismissed

Legislation:

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 476A(3), 477(2)

Date of hearing:

21 August 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

3

Counsel for the Appellant:

The appellant did not appear

Counsel for the First Respondent:

Ms K Morris of Clayton Utz

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

NSD 367 of 2019

BETWEEN:

EGV18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

DAVIES  J

DATE OF ORDER:

21 AUGUST 2019

THE COURT ORDERS THAT:

1. The period specified in r 36.72(1) of the Federal Court Rules 2011 (Cth) for the filing of a notice of competency be extended to 21 August 2019.

2.        The proceeding commenced by way of notice of appeal filed on 13 March 2019 be dismissed.

3.        The appellant is to pay the costs of the first respondent, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

(Revised from transcript)

DAVIES J:

1. The appellant has sought to appeal the decision of the Federal Circuit Court dismissing his application pursuant to s 477(2) of the Migration Act 1958 (Cth) (“the Act”) for an extension of time in which to seek judicial review of the decision of the Administrative Appeals Tribunal which affirmed the decision of a delegate of the first respondent not to grant the appellant a protection visa. There was no appearance by the appellant and no explanation provided by him for his non-attendance. The appellant also did not comply with the orders of the Court made 21 March 2019 to file and serve a written submission in support of his appeal. Nor did the appellant respond to a letter from the Minister’s solicitors notifying him that the Minister would be contending that the appeal is incompetent by reason of s 476A(3) of the Act and inviting the appellant to convert the appeal to an application under s 39B of the Judiciary Act 1903 (Cth). The Minister asked the Court to determine the appeal rather than simply to dismiss for non‑appearance.

2. The appeal is incompetent by force of s 476A of the Act. Section 476A(3) 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);

   …

There is therefore no right of appeal from the decision of the Federal Circuit Court not to grant an extension of time and the appeal should be dismissed with costs.

1. For completeness I note that although the notice of appeal purports that the appeal was brought by leave of the Court granted on 29 October 2018 and that a copy of the order giving leave was annexed to the notice of appeal, no such order was annexed and there is no record of such an order in the Court records.

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

Associate:        

Dated:  28 August 2019