FBC17 v Minister for Immigration

[2018] FCCA 784

FEDERAL CIRCUIT COURT OF AUSTRALIA

FBC17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 784

Catchwords:
MIGRATION – Judicial review – where no application to extend time for filing of judicial review application.

PRACTICE AND PROCEDURE – Time limitation for filing of judicial review application – bases for order extending time – where written application required – where no written application to extend time for filing of judicial review application.

Legislation:

Federal Circuit Court Rules 2001 (Cth), Sch.1, Pt 3, Div 1, Item 3
Migration Act 1958 (Cth), ss.476, 477

Cases cited:

Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48
SZRBN v Minister for Immigration & Citizenship [2012] FMCA 384
SZRBN v Minister for Immigration & Citizenship [2012] FCA 984
WZASQ v Minister for Immigration & Anor [2013] FCCA 1726

Applicant: FBC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 621 of 2017

Judgment of: Judge Antoni Lucev

Hearing date: 28 March 2018

Date of Last Submission: 28 March 2018

Delivered at: Perth

Delivered on: 28 March 2018

REPRESENTATION

For the Applicant: No appearance

Counsel for the First Respondent: Mr P Macliver

For the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

2. The applicant pay the first respondent’s costs in the amount of $7,328 by 28 April 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 621 of 2017

FBC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered orally and subsequently edited)

Introduction

1. By way of a purported application for judicial review (“Judicial Review Application”) filed on 16 November 2017 the applicant seeks review of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The IAA Decision dated 10 October 2017 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a class XA protection visa to the applicant.

Extension of Time Application

1. Under s.477(1) of the Migration Act the Judicial Review Application to this Court was required to be filed within 35 days of the date of the IAA Decision. The date of the IAA Decision is 10 October 2017 and the Judicial Review Application was required to be filed by 14 November 2017. The Judicial Review Application was filed on 16 November 2017, and is therefore 2 days out of time.

2. The need for an extension of time in which to file the Judicial Review Application was brought to the applicant’s attention at the directions hearing in this matter on 15 December 2017, where a Registrar made orders, including an order (being Order 3) requiring the applicant to file any amended application including an application for an extension of time (“Registrar’s Orders”). The applicant has not filed any such amended application, and has not otherwise requested an extension of time in writing.

3. Section 477(2) of the Migration Act provides that the Court has a discretion to extend time for the filing of the Judicial Review Application, but that before the Court can make an order extending time:

   a)there has to be an application for an order to extend time;

   b)the application for an order to extend time must be in writing; and

   c)the application for an order to extend time must specify why it is that the applicant considers that it is necessary in the interests of the administration of justice to make that order. In context, this last requirement makes it clear that the application must be one made by the applicant, for it is for the applicant to specify why it is that it is necessary in the interests of the administration of justice to make an order extending time.

4. It is not open to the Court, whether by a Judge or a Registrar, even by consent, to make an order either waiving or avoiding the requirements of s.477(2) of the Migration Act. There are no provisions of the Migration Act which allow a Judge or Registrar to do so: WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [10]-[11] per Judge Lucev; SZRBN v Minister for Immigration & Citizenship [2012] FMCA 384 (“SZRBN”) at [28]-[30] per Nicholls FM. An application for leave to appeal against SZRBN was dismissed by the Federal Court: SZRBN v Minister for Immigration & Citizenship [2012] FCA 984.

6.The Court also refers to Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 (“Sandan”), where the Court observed at [12]-[15] per Judge Lucev:

12. It has long been recognised that the use of the word “must” in migration legislation, such as s.477(1) of the Migration Act, limiting time for the filing of applications imposes a mandatory obligation to comply with the time limit. In Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104 (“Wang”) the Federal Court said:

In my view the use of the word “must” in s 478(1)(b) and (2), in relation to the 28 day time limit, is not merely directory but “is a word of absolute obligation”: see Posner v Collector for Inter-state Destitute Persons (Vic) (1946) 74 CLR 461 at 490 per Williams J and Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J. Such an interpretation also accords with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory and not merely directory: see D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed, 1996), p 278 and Public Prosecutor v Oie Hee Koi [1968] AC 829 at 852.

Wang, FCR at 391 per Merkel J.

13. Section 477(2) of the Migration Act is a provision under which the Court is given the discretion to make an order extending the otherwise mandatory time limitation in s.477(1) of the Migration Act if, and only if, the conditions in s.477(2) are met. In s.477(2) of the Migration Act the word “and” is used between paragraphs (a) and (b). Although not an invariable rule, where “and” appears joining two or more requirements in a statute it will usually indicate that those requirements are cumulative, unless the particular context requires otherwise: Re The Licensing Ordinance (1968) 13 FLR 143 at 146-147 per Blackburn J; Secretary, Department of Employment, Education, Training and Youth Affairs v Gray [1999] FCA 1150; (1999) 91 FCR 254 at [23] per Hill J; Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 285 FLR 416; (2014) 241 IR 472 at [13] per Judge Lucev. The use of the conjunctive “and” in s.477(2) of the Migration Act therefore means that the obligations imposed by paragraphs (a) and (b) of s.477(2) of the Migration Act are not severable: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252 at [45] per Foster J (“SZRIQ”), the context not requiring otherwise. Thus, the requirements in paragraphs (a) and (b) of s.447(2) of the Migration Act must all be met before time can be extended. As indicated in WZASQ this requires:

a) an application for an order to extend time made in writing specifying why the applicant considers it necessary in the interests of the administration of justice to make an order extending time; and

b) satisfaction on the part of the Court that it is necessary in the interests of the administration of justice to make an order extending time.

14. The Court cannot simply jump to the second step, and satisfy itself that it is necessary in the interests of the administration of justice to make an order extending time, without an application being made which complies with the terms of s.477(2)(a) of the Migration Act.

15. The Judicial Review Application did not seek an extension of time and an extension of time cannot therefore be granted as the applicant has not sought one in writing under s.477(2)(a) of the Migration Act. It follows that the application is therefore incompetent by reason of s.477(1) of the Migration Act, and must be dismissed.

Consideration, conclusion and orders

1. In this case where:

   a)the Judicial Review Application did not seek an extension of time in which to file the Judicial Review Application;

   b)by reason of Order 3 of the Registrar’s Orders the necessity of an extension of time application being filed was made express; and

   c)no application for an extension of time in which to file the Judicial Review Application has subsequently been made,

   it follows that the Judicial Review Application must be dismissed because under s.477(1) of the Migration Act the Court has no jurisdiction to hear the Judicial Review Application: Sandan at [51] per Judge Lucev. There will, therefore, be an order dismissing the Judicial Review Application.

2. In light of the fact that the matter was listed for final hearing of the Judicial Review Application, and the Minister had to prepare full written submissions in contemplation of a final hearing of the Judicial Review Application, the Court considers it appropriate that there be a costs order in the schedule amount of $7,328: Federal Circuit Court Rules 2001 (Cth), Sch.1, Pt 3, Div 1, Item 3, payable by the applicant to the Minister by 28 April 2018.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  28 March 2018