CXK17 v Minister for Immigration and Border Protection

1. The period specified in r 36.72(1) of the Federal Court Rules 2011 (Cth) be extended to 7 November 2018.
2. The proceeding commenced by Notice of Appeal on 28 May 2018 is dismissed.
3. The named appellant is to pay the costs of the first respondent as agreed or otherwise assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 In this matter oral reasons for judgment were delivered on 19 November 2018. This is a written record of the Court's reasons, with minor revisions. 2 Before the Court is a notice of objection to competency filed by the Minister for Home Affairs on 7 November 2018. The Minister seeks to have dismissed a proceeding commenced in this Court on 28 May 2018. The proceeding was commenced by notice of appeal by a person who I will refer to as the appellant. By that document, the appellant sought to appeal from orders and judgment of the Federal Circuit Court of Australia (FCC) (CXK17 v Minister for Immigration & Anor [2018] FCCA 1041). The FCC dismissed an application for judicial review commenced by the appellant by which the appellant sought to have a decision of the Immigration Assessment Authority set aside. 3 The Authority affirmed a decision of a delegate of the Minister to refuse to grant the appellant a Safe Haven Enterprise (Class XE, subclass 790) visa. As the primary judge said, the decision of the Authority was dated 20 October 2016. The appellant had 35 days from the making of that decision in which to apply to the FCC for judicial review. The application for judicial review was, in fact, filed on 30 June 2017, that is, approximately seven months out of time. 4 By s 477(2) of the Migration Act 1958 (Cth), the FCC may extend that 35 day period as it considers appropriate. The learned primary judge refused to make an order under that section extending the time in which to commence the proceeding. 5 Section 24 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) confers jurisdiction on this Court to hear an appeal from a judgment or orders of the FCC. Section 476A(3)(a) of the Act provides that, despite s 24 of the FCA Act, an appeal may not be brought to this Court from a judgment of the FCC that makes an order or refuses to make an order under s 477(2). 6 This proceeding purports to be an appeal from a judgment or order of the FCC by which the FCC refused to make an order under s 477(2) of the Act. It follows that this Court does not have jurisdiction to hear and determine the purported appeal commenced on 28 May 2018. 7 The judgment and orders of the FCC are amenable to judicial review in the exercise of this Court's original jurisdiction inferred by s 39B of the Judiciary Act 1903 (Cth). As counsel for the Minister has correctly observed, there is no time limit attending any such application. On any such application, it would be necessary for the appellant to show that the judgment and orders of the FCC are affected by jurisdictional error as that phrase is used in connection with an inferior court: Craig v South Australia (1995) 184 CLR 163 at [179]. 8 In disposing of this proceeding, I have had regard to the circumstance that the grounds of appeal allege that jurisdictional error affects the FCC's judgment. Counsel for the Minister in his submissions has taken this Court through the reasons of the FCC so as to demonstrate that judgment is not affected by any such error. 9 An issue arises as to whether it is available to this Court to treat the proceeding commenced by notice of appeal as being in the nature and application for judicial review invoking the Court's original jurisdiction. Assuming that course were open to the Court, I would not consider it appropriate to treat the proceeding in that way. That is because, on such an application, the applicant must bear the onus of identifying grounds of jurisdictional error affecting that decision. In this case, the grounds of appeal are stated at such a wide level of generality that it is difficult to comprehend precisely what is the jurisdictional error alleged. 10 As Counsel for the Minister has identified, it remains open to the appellant to commence an application for judicial review and that application. That application, if it were commenced, should be determined on the merits by the judge presiding on it, without the Court, in this proceeding, expressing any view as to the legality of the judgment and orders of the primary judge. 11 As the Court has no power to hear and determine the appeal, it follows that the action commenced by notice of appeal must be dismissed as incompetent. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.