CSE18 v Minister for Immigration, Citizenship and Multicultural Affairs

Why the primary judge refused an extension 17 Section 476 of the Migration Act conferred on the Federal Circuit Court the same original jurisdiction in relation to a 'migration decision' as the High Court has under s 75(v) of the Constitution. It is not in issue that the decision of the Tribunal affirming the delegate's decision was a 'migration decision' in respect of which the Federal Circuit Court had original jurisdiction under s 476. 18 An application to the Federal Circuit Court for a remedy to be granted in the exercise of that court's original jurisdiction under s 476 in relation to a migration decision must be made to that court within 35 days of the date of the decision, but that time period may be extended. Section 477 relevantly provided: Time limits on applications to the Federal Circuit Court (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. (Section 476 and s 477 of the Migration Act have since been amended to refer to the 'Federal Circuit and Family Court of Australia (Division 2)' instead of the 'Federal Circuit Court', but it is convenient to continue to refer to the Federal Circuit Court in these reasons). 19 It can be seen from the terms of s 477 that the discretion to extend the time is broad. In this case the primary judge embarked on a detailed consideration of the merits of the application and the explanation for the delay in filing. 20 The explanation for the delay was that the applicant's husband (who filed his own and the applicant's applications) did not have enough money for the return bus ticket to Adelaide until the day after the 35 day period expired. 21 The grounds relied upon for the proposed judicial review application were expressed in general and unparticularised terms such as the Tribunal '[applied] the wrong test', 'failed to take into account relevant country information' and 'failed to actively and intellectually engage with all the integers of our claim for protection'. 22 It is not necessary to record all of the primary judge's reasons as to the prospect of the application succeeding before that Court. Relevantly they are at [95]-[109] of the reasons. However, in summary, the primary judge noted the Tribunal's careful consideration of the applicant's claims over the course of some 90 paragraphs of its reasons, and noted that it was not apparent that it had failed to engage with any part of those claims. The primary judge considered the credibility findings were open to the Tribunal based on the matters referred to, and were not capricious. The ample opportunities extended to the applicant to provide medical evidence undermined any claim based on an absence of procedural fairness in that regard (the applicant was represented before the primary judge and had the assistance of an interpreter). 23 In all the circumstances, the primary judge was not persuaded that there was any merit in the non-specific grounds of review relied upon by the applicant, and concluded that she was really seeking to challenge the merits, rather than pointing to any jurisdictional error. 24 The primary judge concluded that the applicant had not presented a case which had a prospect of securing any relief. His Honour cited the comment of Foster J in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [39], to the effect that in determining an application for an extension of time, the 'more important consideration' is the 'real prospects of obtaining judicial review'. 25 The primary judge then turned to the question of delay, noting there was no evidence as to attempts to find the bus fare during the 35 day period, and concluding that the explanation was not satisfactory. 26 The primary judge declined to grant the extension, a decision that led to the applicant bringing the application in this Court to appeal, albeit considerably out of time.

The reasons of the primary judge and FKV17 and Tu'uta Katoa 27 Before moving to the objection to competency, I note that the nature of the inquiry to be undertaken by the primary judge in the context of an extension application has been the subject of recent decisions, including FKV17 v Minister for Home Affairs [2022] FCAFC 93 and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28. 28 The Full Court in FKV17 confirmed that an appeal may not be brought to this Court from a judgment of the Federal Circuit Court that refuses to make an order under s 477(2) of the Migration Act: at [11], [89], [93(8)] (Greenwood J), [133] (Rangiah J), [177] (Beach J). 29 However, the majority found that the Federal Circuit Court in that case had committed jurisdictional error by refusing to grant an extension under s 477(2) after it conducted an analysis that went beyond one that was limited to a 'reasonably impressionistic' analysis of the proposed grounds of judicial review: at [88] (Greenwood J), [153] (Rangiah J). In dissent, Beach J did not consider there was any jurisdictional error disclosed by 'delving too deeply': at [176]. 30 The High Court subsequently held in Tu'uta Katoa that it is generally permissible to refer to the substantive merits of the proposed application in order to determine whether to grant an extension of time under s 477(2) and s 477A(2) of the Migration Act: at [4], [12], [17]-[19] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [47]-[49], [51]-[52], [54]-[63] (Gordon, Edelman and Steward JJ). 31 Again bearing in mind that the applicant is self-represented on this appeal, I invited the parties to provide short supplementary submissions about those decisions. The Minister did so. The applicant did not provide any further submissions. I accept that the decisions do not assist having regard to the objection to competency, to which I will shortly turn. However, I also note that, having reviewed the primary judge's reasons in some detail, and taking into account the principles discussed in Tu'uta Katoa, my preliminary view is that his Honour conducted his review of the potential merit of the applicant's claims in accordance with those principles. It is neither necessary nor appropriate to say anything further in that regard on this application. 32 For completeness, I note that in the supplementary submissions, the Minister acknowledged that despite the objection to competency, the applicant is not without redress, and indicated that it might be open to the applicant to seek to quash the orders of the primary judge on the basis of jurisdictional error in the original jurisdiction of the Federal Court under s 39B of the Judiciary Act 1903 (Cth) or in the High Court's original jurisdiction under s 75(v) of the Constitution: Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [11]; and SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73 at [62].

The objection to competency - no appeal may be brought to this Court from the orders of the primary judge 33 The proceeding in this Court was commenced by way of an application for an extension of time to file a notice of appeal under Part 36 of the Federal Court Rules 2011 (Cth). It is not an application that seeks to invoke this Court's original jurisdiction under s 39B of the Judiciary Act discrete from its original jurisdiction under s 476A(1) of the Migration Act. 34 Section 24 of the Federal Court of Australia Act 1976 (Cth) relevantly provides that the appellate jurisdiction of this Court includes appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth. 35 The difficulty for the applicant is that s 476A(3)(a) of the Migration Act provides that despite s 24, an appeal may not be brought to this Court from a judgment of the Federal Circuit Court that makes an order, or refuses to make an order, under s 477(2) of the Act. 36 The evident purpose of s 476A(3)(a) of the Migration Act has been described as to foreclose any right of appeal against discretionary decisions made by the Federal Circuit Court to make an order or refuse to make an order under s 477(2) of the Migration Act: SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 at [5]; and MZYNW v Minister for Immigration and Citizenship [2012] FCA 150 at [8]. 37 It follows that there is no jurisdiction to entertain an appeal from the orders of the Federal Circuit Court refusing the extension of time, and therefore the applicant's application in this Court seeking an extension of time in which to file an appeal from the primary judge's orders must be refused. 38 It is not necessary to consider the reasons for the delay in instituting proceedings in this Court, as the delay is not the basis upon which the objection to competency rests and must succeed.

(2014) 222 FCR 73

(2013) 217 FCR 55

[2012] FCA 150

[2014] FCAFC 40

[2013] FCAFC 139

[2022] HCA 28