GCU18 v Minister for Immigration and Citizenship

[2025] FCA 727

Federal Court of Australia

GCU18 v Minister for Immigration and Citizenship [2025] FCA 727

Appeal from:	GCU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 229
File number:	VID 231 of 2023
Judgment of:	SNADEN J
Date of judgment:	4 July 2025
Catchwords:	MIGRATION – appeal from decision of the Federal Circuit and Family Court of Australia (Division 2) (“FCFCOA”) – where primary judge dismissed application made out of time for judicial review of Administrative Appeals Tribunal decision – where primary judge refused to make an order under s 477(2) of the Migration Act 1958 (Cth) (“Act”) – where notice of objection to competency filed by respondent Minister – jurisdiction of court under s 476A of the Act to hear an appeal from a judgment of the FCFCOA that refuses to make an order under s 477(2) of the Act – appeal dismissed.
Legislation:	Migration Act 1958 (Cth) ss 476(A), 477
Cases cited:	GCU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 229
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	9
Date of hearing:	30 June 2025
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Mr A Cunynghame of Sparke Helmore Lawyers
Counsel for the Second Respondent:	The second respondent filed a submitting notice, save as to costs

ORDERS

VID 231 of 2023

BETWEEN:

GCU18

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	SNADEN J
DATE OF ORDER:	4 july 2025

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration and Citizenship.

2.    The name of the second respondent be amended to Administrative Review Tribunal.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs fixed in the sum of $4,000.

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

REASONS FOR JUDGMENT

SNADEN J:

1    Nearly nine years ago, the appellant made an application under the Migration Act 1958 (Cth) (the “Act”) for a protection visa. It was declined by a delegate of the first respondent (the “Minister”). The appellant then sought to have that decision reviewed by what was then known as the Administrative Appeals Tribunal (the “Tribunal”). A hearing was scheduled to that end but the appellant did not attend it. In August 2017—and in consequence of his failure to appear at the hearing—the Tribunal dismissed the appellant’s application for review but reserved for him a two-week right of reinstatement.

2    No attempt to reinstate that review application was made. Instead, in November 2018, the appellant made an application to what was then known as the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)—hereafter, the “FCFCOA”) for judicial review of the Tribunal’s decision. That application was filed well after the expiry of the 35-day time limit that s 477(1) of the Act imposes in respect of such applications. Accordingly, in order that his application for judicial review might proceed, it was necessary for the appellant to secure an extension of that deadline under s 477(2).

3    That endeavour was also unsuccessful. By judgment dated 24 March 2023, the FCFCOA dismissed the appellant’s application for an extension of time: GCU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 229 (the “Primary Judgment”; Judge Kendall).

4    By notice dated 11 April 2023, the appellant appeals from the whole of the Primary Judgment. He charges the primary judge with error insofar as he did not accept that the Tribunal’s decision was a product of jurisdictional error.

5    On 1 May 2023, a registrar of the court made various procedural orders, including as to the timeframe within which the Minister might file a notice of objection to competency. On 2 May 2023, the Minister filed such a notice. It is to that objection that the following reasons pertain.

6 Section 477(2) of the Act confers upon the FCFCOA a power to extend the 35-day deadline within which applications must be made to that court (and, before it, to the Federal Circuit Court of Australia) for judicial review of migration decisions. It was that power that the primary judge declined to exercise in the present matter.

7 Section 476A of the Act is headed, “Limited jurisdiction of the Federal Court”. As that heading suggests, it serves to limit the applications that may or may not be brought under the Act in this court. Section 476A(3) of the Act provides as follows, namely:

476A Limited jurisdiction of the Federal Court

…

(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); or

…

8    At the hearing before me, the appellant was invited to explain why the court should entertain his appeal in the face of that statutory barrier. Through an interpreter, he politely requested a “second chance” to present his case before the Tribunal, and explained that his absence from the hearing that was scheduled in that forum was due to his ill health at the time and was a mistake on his part. The appellant confirmed by way of answer to a question posed by the court that he had made equivalent submissions before the primary judge. Perhaps unsurprisingly, the appellant did not make any submissions directly addressing the Minister's notice of objection to competency.

9 There is no doubt that this court cannot entertain the present appeal. Section 476A(3)(a) of the Act makes very clear that the court has no appellate jurisdiction in respect of decisions to grant or not grant extensions of time under s 477(2). It must and will be dismissed for want of competence. The Minister proposes other procedural orders that are self-evidently appropriate, and they too will be made.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.

Associate:

Dated:    4 July 2025