BCL16 v Minister for Immigration and Border Protection

1. The application for extension of time filed on 15 May 2018 be dismissed.
2. The applicant pay the first respondent's costs to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 These reasons were delivered ex tempore at the hearing on 23 November 2018 and accompany the orders set out above. 2 The applicant seeks an order for an extension of time within which to appeal from an order of a judge of the Federal Circuit Court of Australia (the judge below) dismissing her application for extension of time to seek review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), dated 29 February 2016. In that decision, the Tribunal affirmed a decision of the first respondent's (the Minister's) delegate not to grant the applicant a Protection (Class XA) visa (the visa). The judge below ordered that the applicant's application for an extension of time to apply for judicial review of the decision of the Tribunal be dismissed. 3 The applicant has filed in this court a document headed "Application for an extension of time" which seeks "an extension of time under rule 36.05 to file Notice of Appeal". The affidavit sworn by the applicant in support of the application, omitting formal parts, is in these terms: 1. I am the applicant of these proceedings. 2. On the 11 May 2016 I filed these proceedings. 3. On 12 April 2018 I went to the hearing by myself as I wasn't told my case has a better chance of success with a lawyer. 4. Honourable Judge ask me during the hearing if I have a lawyer and I said no but no one have provided me with advice regarding the procedures. 5. I thought the court will give me a lawyer but the matter was dismissed on the spot and I was shocked. 6. I am really worried [and] I got a legal advice. I am saving for the legal fees so I can have a representative with me so please reinstate my case so I can have some justice. 7. I am really stressed [and] I can't sleep without worrying about my deportation. 8. On 2 May 2018 I receive an email from the Department of Home Affairs informing me that my BE is about to expire on 10 May 2018. 9. After I contacted my migration agent to help me with [BVE] and we call to the court to get the copy of court's decision. 10. When I receive court orders and then I found out that I am out of time. 4 Section 24 of Federal Court of Australia Act 1976 (Cth) relevantly provides that this court has jurisdiction to hear and determine appeals from judgments of the Federal Circuit Court of Australia exercising original jurisdiction. Section 477 of the Migration Act 1958 (Cth) (the Migration Act) is headed "Time limits on applications to the Federal Circuit Court" and provides as follows: (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 5 Section 476A of the Migration Act is headed "Limited jurisdiction of the Federal Court". Section 476A(3)(a) provides as follows: 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 Court that makes an order or refuses to make an order under subsection 477(2) … 6 In this case, the judge below refused to make an order under s 477(2) within the meaning of s 476A(3)(a) of the Migration Act. It follows, by the express terms of that provision, that this court does not have jurisdiction to hear the applicant's application. Accordingly, it must be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.