Eot21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 619
•23 May 2022
FEDERAL COURT OF AUSTRALIA
EOT21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 619
Appeal from: Federal Circuit Court of Australia File number(s): NSD 1345 of 2021 Judgment of: BURLEY J Date of judgment: 23 May 2022 Catchwords: MIGRATION – application for review of Federal Circuit Court’s decision to dismiss application for extension of time to review decision by Administrative Appeals Tribunal – notice of objection to competency – no jurisdiction to review primary judge’s decision by operation of s 476A of the Migration Act 1958 (Cth) – application dismissed Legislation: Migration Act 1958 (Cth) ss 426A, 477(2), 476A Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of hearing: 23 May 2022 Solicitor for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms M Kelly of Sparke Helmore Solicitor for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
NSD 1345 of 2021 BETWEEN: EOT21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BURLEY J
DATE OF ORDER:
23 MAY 2022
THE COURT ORDERS THAT:
1.The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)BURLEY J:
By an application for extension of time and leave to appeal filed on 7 September 2021, the applicant seeks to appeal from the orders and judgment of a judge of the Federal Circuit Court of Australia. The primary judge refused to make an order, pursuant to s 477(2) of the Migration Act 1958 (Cth), and dismissed the application for an extension of time. By a notice of objection to competency filed on 17 September 2021, the Minister challenges the competency of this appeal. The present proceedings were first listed before the Court on 14 December 2021 and were then adjourned to give the applicant an opportunity to obtain legal representation.
The proceedings returned on 1 April 2022 and the applicant had not, by then, been able to secure the assistance of lawyers. The proceedings were then listed for hearing of the objection to the notice of competency on 23 May 2022. At the hearing, the applicant appeared representing himself with the assistance of an interpreter. He relies on his application for an extension of time and also an affidavit made by him on 30 August 2021.
The applicant, who is a citizen of Fiji, arrived in Australia on a tourist visa in 2005. In March 2019, the applicant applied for a protection visa.
In April 2019, a delegate of the Minister refused to grant the applicant the visa. The applicant sought review of that decision in the Administrative Appeals Tribunal on 15 June 2019. On 26 August 2020, the Tribunal affirmed the decision under review. By application filed in the Federal Circuit Court on 28 October 2020, the applicant sought an extension of time in which to seek judicial review of the Tribunal’s decision. The application was filed 28 days outside of the prescribed time. In February 2021, the primary judge held that while the applicant’s delay in filing his application was moderate, the proposed application contemplated was without merit and did not enjoy any reasonable prospects of success such as to warrant the grant of an extension of time.
In relation to proposed ground 1, the primary judge held that the Court did not have jurisdiction to review the delegate’s decision. In relation to proposed ground 2, the primary judge held that the supporting particulars referred to situations that did not occur in the matter and made no attempt to grapple with the Tribunal’s decision. The primary judge was satisfied that the Tribunal had afforded the applicant procedural fairness and that he was properly invited to appear before the Tribunal. Accordingly, the primary judge was satisfied that the Tribunal’s power to proceed under s 426A of the Act was properly enlivened and reasonably exercised.
The primary judge concluded that the applicant was unable to demonstrate an arguable case of jurisdictional error when the grounds were considered at an impressionistic level. Accordingly, the primary judge was not satisfied it was necessary in the interests of the administration of justice to grant the extension of time, and refused the application under s 477(2) of the Act, with costs.
On 7 September 2021, the applicant filed the present application for an extension of time and leave to appeal from the judgment and orders of the primary judge dismissing the application for an extension of time.
Section 476A of the Act relevantly 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 and Family Court of Australia (Division 2) that makes an order or refuses to make an order under subsection 477(2)…
Section 477(2) provides for time limits on applications to the Federal Circuit and Family Court of Australia. Section 476A makes clear that when there is a refusal of an extension of time under section 477(2) of the Act, the Court does not have jurisdiction, and no appeal may be brought to this Court.
The result is that the application for an extension of time and leave to appeal is incompetent and must be dismissed with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. Associate:
Dated: 23 May 2022
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