Plaintiff S98/2019 v Minister for Home Affairs & Anor

[2019] HCATrans 145

[2019] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S98 of 2019

B e t w e e n -

PLAINTIFF S98/2019

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

IMMIGRATION ASSESSMENT AUTHORITY

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 JULY 2019, AT 10.01 AM

Copyright in the High Court of Australia

HIS HONOUR:   The orders I make in this matter are:

1.The name of the first defendant is amended to “Minister for Home Affairs”.

2.The application is dismissed under rule 25.09.1 of the High Court Rules 2004 (Cth).

3.The plaintiff is to pay the defendants’ costs.

I publish my reasons and I direct that those reasons be incorporated into the transcript.

On 27 March 2019, the plaintiff filed an application for a constitutional or other writ in the original jurisdiction of the High Court.  By it, the plaintiff seeks relief in respect of a decision made on 22 February 2019 by Wheelahan J in the Federal Court of Australia upholding an objection to the competency of his application for an extension of time and for leave to appeal a decision of the Federal Circuit Court.  In particular, the plaintiff seeks a writ of certiorari quashing the Federal Court’s decision and a writ of mandamus directing the Federal Court to determine his application to that Court according to law. 

Although the Federal Court is not a party to this application, I proceed on the basis that there would be no impediment to joinder of the Federal Court were the application to proceed.  The first defendant has sought an order that his name be amended to the Minister for Home Affairs, and that order will be made. 

The plaintiff, who is a citizen of Iraq, applied for a temporary protection visa which was refused by the delegate of the Minister in October 2015.  The Immigration Assessment Authority affirmed that decision on 14 December 2015. 

On 29 March 2017, the Federal Circuit Court dismissed the plaintiff’s application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time to seek judicial review of the Authority’s decision: see CYD16 v Minister for Immigration [2017] FCCA 610.

The plaintiff subsequently made an application to the Federal Court for an extension of time and leave to appeal from the Federal Circuit Court’s decision. Wheelahan J dismissed that application for the reason that any appeal from the Federal Circuit Court’s decision would be incompetent under s 476A(3)(a) of the Migration Act 1958 (Cth): see CYD16 v Minister for Immigration and Border Protection [2019] FCA 213 at [4]‑[5]. Section 476A(3)(a) provides that an appeal “may not be brought to the Federal Court from ... a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2)”.

The grounds of the plaintiff’s present application are addressed to a jurisdictional error that he claims Wheelahan J made in dismissing his application on the basis that it was incompetent under s 476A(3)(a). He argues that Wheelahan J erred by failing to consider the exercise of what he characterises as a discretionary power conferred by s 476A(3). Specifically, the plaintiff argues that the use of the word “may” in the expression “may not” in s 476A(3) confers a discretion upon the Federal Court as to whether to hear an appeal from a decision of the Federal Circuit Court refusing to make an order under s 477(2). The plaintiff argues that the legislature should not be presumed to have intended to deprive him of a legal remedy without unmistakable and unambiguous language to that effect.

The argument is not plausible. “May not” in the context of s 476A(3)(a) means “cannot”. As has been repeatedly recognised in decisions of the Federal Court, many of which were noted by Pagone J in Dhaliwal v Minister for Immigration and Border Protection [2017] FCA 1274 at [2], the unambiguous effect of s 476A(3)(a) is that the Federal Court has no jurisdiction to hear an appeal from a decision by the Federal Circuit Court refusing to make an order under s 477(2).

The application discloses no arguable basis for the relief sought by the plaintiff. 

The orders I will therefore make are as follows:

1.The name of the first defendant is amended to “Minister for Home Affairs”.

2.The application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

3.        The plaintiff is to pay the defendants’ costs.

AT 10.01 AM THE MATTER WAS CONCLUDED