Kaur v Minister for Immigration and Border Protection

[2015] FCA 298

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2015] FCA 298

Citation:	Kaur v Minister for Immigration and Border Protection [2015] FCA 298
Parties:	BALWINDER KAUR and GURDEEP SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	QUD 4 of 2015
Judge:	LOGAN J
Date of judgment:	16 March 2015
Catchwords:	MIGRATION – application for extension of time and related leave to appeal – where applicants applied to the Federal Circuit Court for judicial review of a decision of the second respondent – application dismissed by order made on signed consent – following receipt of further legal advice on prospects the applicants filed a notice of appeal against the dismissal in this Court – notice of objection to competency filed by first respondent – whether leave to appeal should be granted thereby removing the basis for the objection to competency – no error on the part of the Federal Circuit Court in ordering dismissal upon parties’ consent – application for leave and appeal dismissed
Legislation:	Federal Court of Australia Act 1976 (Cth) s 24 Migration Act 1958 (Cth)
Date of hearing:	16 March 2015
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
Counsel for the Applicants:	The Applicants appeared in person with the assistance of an interpreter
Solicitor for the Respondents:	Clayton Utz Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 4 of 2015

BETWEEN:

BALWINDER KAUR
First Applicant

GURDEEP SINGH
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	16 MARCH 2015
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application for an extension of time and related leave to appeal is dismissed.

2.The objection to competency is upheld.

3.The appeal is dismissed.

4.The applicants pay the first respondent’s costs of and incidental to the application and appeal, including the notice of objection to competency, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 4 of 2015

BETWEEN:

BALWINDER KAUR
First Applicant

GURDEEP SINGH
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	16 MARCH 2015
PLACE:	BRISBANE

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. Ms Balwinder Kaur (Ms Kaur) and her husband Mr Gurdeep Singh have applied for an extension of time within which to appeal against a judgment of the Federal Circuit Court of Australia (Federal Circuit Court) given on 9 December 2014.  By that order the applicants’ application for the judicial review of a Migration Review Tribunal (Tribunal) decision was dismissed with costs which were fixed in the sum of $3,416.  The judgment of the Federal Circuit Court, though it included an order of dismissal, was nonetheless in character an interlocutory judgment. 

2. The applicants filed a notice of appeal on 5 January 2015.  Most of the grounds of appeal raise a number of alleged jurisdictional errors on the part of the Tribunal.  They do not, as an appeal to this Court from the Federal Circuit Court ought to do, engage with the error allegedly made by the Federal Circuit Court.  It is important to remember that the Federal Court of Australia does not have an original judicial review jurisdiction in respect of decisions of the Tribunal.  That original jurisdictional is granted by the Migration Act 1958 (Cth) to the Federal Circuit Court. Only one of the grounds of appeal recognises that distinction. That is ground 6, which is in these terms:

   The order 9 December 2014 by Federal Circuit Court was made without hearing the case of the appellants.  The appellants were wrongly advised to discontinue their case in the Federal Circuit Court.  The appellants’ precious rights relating to stay in Australia need to determine through proper hearing of the parties. 

   [sic]

3. The Minister for Immigration and Border Protection (Minister), on 19 January 2015, filed a notice of objection to competency in respect of the appeal. The basis of the objection is that the Federal Circuit Court’s judgment was interlocutory, and therefore an appeal to this court lies only by leave: see s 24(1A) and s 24(1D) of the Federal Court of Australia Act 1976 (Cth) and r 35.11 of the Federal Court Rules 2011 (Cth). The upshot of those statutory provisions and the rule mentioned is that the applicants were required to file an application for leave to appeal by 23 December 2014. The Minister’s point is that the notice of appeal does not have a grant of leave, and leave ought to have been the subject of an application filed by 23 December 2014. In my view, the Minister has correctly characterised the nature of the Federal Circuit Court judgment. Further, given that the judgment has that character, a grant of leave to appeal is necessary. It is possible, of course, for an extension of time to be given within which to seek leave to appeal.

4. Today was the day appointed for the hearing of the Minister’s objection to competency.  The applicants were originally minded to seek an adjournment of the hearing of the application.  That was on the basis of some particular difficulties flowing from Ms Kaur’s medical condition.  I do have some evidence before me from a treating practitioner in that regard.  For his part, the Minister quite properly was disposed, having regard to Ms Kaur’s condition, not to oppose an adjournment.  On reflection and having had their attention drawn to particular issues that would arise on the hearing of the objection to competency, the applicants decided that they wished the application to proceed today.  Influential also in that regard was the fact that, if they were not ultimately successful, an adjournment might carry with it a greater potential liability to costs. 

5. If I considered that the case was one where an extension of time within which to grant leave to appeal was warranted, I would grant that extension and leave to appeal.  It would follow from the granting of an extension and leave to appeal that the basis for the objection to competency would disappear.  The Minister correctly acknowledged that in his submissions.  So the issue very much is whether the case is one where an extension of time and related leave to appeal should be granted. 

6. The difficulty about that for the applicants is that the order of dismissal in the Federal Circuit Court was made against the background of a consent to the making of orders, which was signed by the parties and lodged with that court.  There is no evidence which would show that the Federal Circuit Court judge had anything before him other than a consent apparently signed on behalf of each of the applicants.  The consent is signed only by Ms Kaur, but it is apparent from the exchange between her and the solicitors for the Minister which proceeded the signing of the consent that the signing was intended to be for both her and her husband.

7. The difficulty, then, for the applicants is that the Federal Circuit Court, in making the orders, acted on an apparently regular consent to the making of those orders.  The difficulty in turn, then, is that there is no apparent error on the part of the Federal Circuit Court judge in making the orders which are the subject of the proposed appeal in this Court. 

8. The applicants have filed evidence in support of their application which, if accepted (and there is no challenge on the hearing of the application in this Court to that evidence), would show that Ms Kaur was, in December, suffering from a particular medical condition.  Further, she has, in submissions this morning, stated that she and her husband had received particular advice about prospects and were under some stress and decided to sign the discontinuance notice.  None of that, though, was known to the Federal Circuit Court judge when his Honour came to act on the consent apparently signed on behalf of each of the applicants. 

9. Even if I were to approach the notice of appeal on the basis that the grounds, other than ground 6, which allege jurisdictional error on the part of the Tribunal, really alleged that the Federal Circuit Court should have found such jurisdictional errors, the problem which remains is that this is a judgment of dismissal entered regularly against the background of a consent signed by each party to the making of the orders.  When one focuses, as one must, on the character of the judgment under appeal and the basis upon which it was made, the application for extension and related leave to appeal is truly hopeless. 

10. It is a very moot point indeed and not one for resolution today as to whether, in the events which transpired, the Federal Circuit Court, if it were possessed of the evidence led in support of the extension of time application, would have power in the circumstances to set aside the order of dismissal.  That question is one with which the Federal Circuit Court would have to deal in the event that the applicants made application to that court to set aside the order of dismissal.  As it stands, this Court has jurisdiction only to decide whether an extension of time and related leave to appeal should be granted.  As I have said, the case for that is truly hopeless.  That being so, there is no basis for resisting an otherwise well-taken objection to competency. 

11. The application for extension of time and related leave to appeal is dismissed.  The objection to competency is upheld.  The appeal is dismissed. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:        

Dated:        2 April 2015