Chauque v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background matters 5 The background to the applicant's application is as follows. 6 On 15 November 2019, the applicant received a notice from the Australian Border Force advising him that arrangements had been made for his removal from Australia pursuant to s 198(6) of the Act. The notice stated that it was anticipated that the applicant would be removed from Australia on 27 November 2019. 7 I infer that the notice from the Australian Border Force prompted the applicant to file the application for an extension of time in which to lodge an application for review of the visa refusal decision. The application is dated 19 November 2019 but was not filed until 25 November 2019. 8 On 5 December 2019, the applicant also filed an interlocutory application seeking to restrain the Minister from removing him from Australia until the application for an extension of time had been finalised. On 9 December 2019, I heard and dismissed that interlocutory application. My reasons are published as Chauque v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2100. 9 As already noted, on 23 January 2020 the Minister filed a notice of objection to competency to the application for an extension of time. The parties came before me for case management on 31 January 2020. At that time, I listed the Minister's objection for hearing today. The Minister subsequently filed the affidavits referred to above, together with an outline of submissions.

Consideration of objection 10 Rule 31.24(5) provides that, if the Court decides that an application is not competent, the application is dismissed. 11 Section 476A(1) of the Act confers and confines the Federal Court's original jurisdiction to hear and determine applications for judicial review in relation to "migration decisions". Section 476A(1) is in the following terms: (1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if: (a) the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or (c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or (d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975. 12 I accept the Minister's submission that the visa refusal decision that is sought to be reviewed by the primary application is a "migration decision" for the purpose of s 476A. That expression is defined in s 5 to include a privative clause decision, which in turn is defined in s 474. Subject to exceptions that are not presently relevant, a privative clause decision is a decision of an administrative character made under the Act, including a decision refusing to grant a visa (see s 474(3)(b)). The visa refusal decision is such a decision. 13 Under s 476A, the Federal Court's jurisdiction in relation to migration decisions is confined to the decisions specified in subsection (1). That subsection does not include decisions made by the Minister under s 65 of the Act. Accordingly, the visa refusal decision does not fall within the original jurisdiction of this Court as conferred and confined by s 476A of the Act. Any application to review the visa refusal decision is, accordingly, incompetent. 14 It also follows that the originating application for an extension of time in which to bring an application for judicial review of the visa refusal decision is both futile and incompetent (given that the underlying application sought to be brought is incompetent).

Conclusion 15 Accordingly, I will dismiss the originating application and order the applicant to pay the Minister's costs of the originating application and the objection to competency. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan.