MZYRZ v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The appellant purports to appeal against the judgment of the Federal Circuit Court given on 18 December 2015. By that judgment, the Federal Circuit Court dismissed an application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time to apply for constitutional writs in respect of a decision of the Refugee Review Tribunal ("the Tribunal") made in early February 2011. The Tribunal affirmed the decision of the first respondent's delegate refusing to grant a Protection (Class XA) visa ("protection visa"). 2 The first respondent submits that the appeal is incompetent and that the Court has no jurisdiction to entertain it, because of s 476A(3)(a) of the Migration Act. 3 The appellant is a citizen of India. In early April 2009, she arrived in Australia as the holder of a student visa. In late April 2010, the appellant lodged an application for a protection visa. In early February 2011, a delegate of the first respondent made a decision refusing to grant the appellant the visa. In early March 2011, the appellant applied to the Tribunal for review of the delegate's decision. In late September 2011, the Tribunal affirmed the delegate's decision. The appellant then applied to the Federal Magistrates Court in late October 2011 for constitutional writs directed to the Tribunal. 4 In early April 2012, the appellant filed a notice of discontinuance. In mid-April 2012, the Federal Magistrates Court made orders by consent that the proceeding be dismissed, and that the appellant pay the first respondent's costs. 5 In early April 2012, the appellant had lodged an application for a Partner (Temporary Class UK, Subclass 820) visa ("a partner visa"). In mid-December 2012, a delegate of the first respondent refused that application. In early January 2013, the appellant applied to the Tribunal for review of the delegate's decision, but that decision was affirmed in mid-November 2013. The appellant then applied to the Federal Circuit Court for constitutional writs in respect of the decision of the Tribunal, but that application was dismissed in mid-June 2014. The appellant was unsuccessful in an appeal to the Federal Court, which dismissed the appeal in late November 2014. The appellant sought special leave to appeal to the High Court, but that application was dismissed in early April 2015. 6 In late April 2015, the appellant made a second application to the Federal Circuit Court for constitutional writs in respect of the decision of the Tribunal of late September 2011. In her application, the appellant indicated that she applied for an extension of time under s 477(2) of the Migration Act. Section 477(2) provides: (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. 7 In mid-December 2015 the Federal Circuit Court conducted a hearing of the application for an extension of time under s 477(2), refused the extension, and dismissed the proceeding. The primary judge held that as the appellant's previous application against the decision of the Tribunal had been concluded with consent orders dismissing the application, this prima facie created an estoppel; and the proceeding should be dismissed on that basis. 8 His Honour also noted that the extension of time sought was for some 3½ years. His Honour considered that the application for an extension of time should be dismissed because of the length of the delay, the appellant's decision to pursue an alternative category of visa, and because the appellant had not established an arguable case. His Honour concluded that the case was overwhelmingly against the appellant. His Honour ordered that the application filed in late April 2015 be dismissed. 9 The first respondent submits that the judgment of the Federal Circuit Court is properly characterised as one refusing to make an order under s 477(2) of the Migration Act. I agree with that characterisation of the judgment. 10 Section 476A(3)(a) of the Migration Act provides: (3) 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) 11 There have been a number of judgments of single judges of this Court which have held that the Court has no jurisdiction to entertain an application or appeal against an order made by the Federal Circuit Court under s 477(2) of the Migration Act: AZACM v Minister for Immigration and Citizenship [2013] FCA 710 at [11]; Bandi v Minister for Immigration and Border Protection [2014] FCA 1290 at [8]; BZABK v Minister for Immigration and Citizenship (2012) 205 FCR 83 at [30], [36]-[38]; MZYIZ v Minister for Immigration and Citizenship [2010] FCA 1449 at [4]; MZYNW v Minister for Immigration and Citizenship [2012] FCA 150 at [8]-[9]; SZOQJ v Minister for Immigration Citizenship [2011] FCA 191 at [8]-[9]; SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 at [7]; SZQYP v Hannigan [2012] FCA 723 at [18]-[19]. The purported appeal cannot succeed for that reason. 12 Even if the judgment of the Federal Circuit Court is characterised as a dismissal of the second application on the basis that the appellant had previously consented to the dismissal of her first application, the primary judge was correct to find that she was estopped from bringing the second application: see Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 510, Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192; (2000) 178 ALR 677 at [37], [54], [65], [70]. Alternatively, the second application was an abuse of process: see Walton v Gardiner (1993) 177 CLR 378 at 393; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 89 ALJR 750 at [25]-[26], Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 32-33. 13 For these reasons, the appeal must be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.