MZZTY v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 On 19 November 2013 an urgent application was made to the Court in Melbourne on behalf of the appellant. He sought to have the respondent Minister restrained from deporting him from Australia pending the hearing and determination of an appeal which he wished to bring from orders made by the Federal Circuit Court. Those orders had been made by Judge Turner on 13 November 2013. He ordered that "[t]he application filed 7 October 2013 is dismissed" and that "[a]ll extant applications are dismissed and the matter is removed from the list of pending cases." He also made an order that the applicant pay the Minister's costs. I was told that the applications referred to in his Honour's orders were applications relating to a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister to refuse the appellant a protection visa. 2 Judge Turner gave oral reasons for dismissing the appellant's application. He indicated that he would later publish revised reasons. He had not done so by the time at which the matter came before this Court on 19 November 2013. 3 The terms of his Honour's orders gave rise to some ambiguity. There were a number of bases on which he could have determined to dismiss the application. There was a distinct possibility that his Honour had acted under s 477(2) of the Migration Act 1958 (Cth) ("the Act") on the ground that the application had been filed out of time and no enlargement was warranted. Had he done so, s 476A(3) of the Act would have operated to deprive this Court of the jurisdiction which it would have otherwise have had pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"), to entertain the appeal. 4 It was conceivable, however, that his Honour might have determined to extend time but then proceeded to dismiss the application on legal grounds. 5 In these circumstances the Minister gave an undertaking to the Court that the appellant would not be removed from Australia pending the determination of this proceeding. 6 On 22 November 2013 Judge Turner published his reasons. They disclosed that the application filed on 7 October 2013 was an application for judicial review of the Tribunal's decision. That decision had been handed down on either 8 or 9 May 2013. As a result the appeal had been commenced out of time. 7 Section 477(1) of the Act provides that an application for judicial review of a Tribunal decision must be made to the Federal Circuit Court "within 35 days of the date of the [Tribunal's] decision." By s 477(2) the Federal Circuit Court may enlarge time if certain preconditions are met. One of them is that the Court is satisfied that an enlargement of time is necessary in the interests of the administration of justice. 8 Judge Turner recorded that the appellant had made a written application for extension of time without specifying any reason why it would be in the interests of the administration of justice to do so. The Minister opposed the application. His Honour then observed that, in considering the application for an extension of time, a relevant consideration was the prospects of the principal application for judicial review succeeding. He considered the grounds advanced by the applicant and concluded that: "The Court finds that the grounds of the application for judicial review have no merit. An extension of time is therefore, not necessary in the interests of the administration of justice. An extension is therefore denied. There being no application for judicial review properly before the Court; judicial review of the decision of the Tribunal dated 8 May 2013 is denied. Alternatively, if, as a matter of law an extension of time should be granted the Court has considered the applicant's case for judicial review and finds it to be of no merit. The application for judicial review would be dismissed on that basis also." 9 A reading of his Honour's reasons thus makes clear that the primary basis for his order that the application for judicial review be dismissed was that that application had been brought out of time and he was not satisfied that any extension was necessary in the interests of the administration of justice. In saying that the extension was "denied" his Honour must be taken to have refused the application. He, therefore, can be seen to have acted under s 477(2) by refusing the applicant's application for an extension of time. 10 Following the publication of Judge Turner's reasons the Minister filed a notice of objection to competency on the ground that the Court did not have jurisdiction to entertain the appeal. Argument on the notice took place this morning. 11 This Court only has such appellate jurisdiction as is conferred on it by statute. The principal source of that jurisdiction is s 24 of the FCA Act. Section 476A(3) of the Act deprives the Court of jurisdiction which it would otherwise have under s 24 in matters such as the present. The sub-section 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); or (b) … ". 12 The purported appeal cannot proceed in this Court. The Minister's objection to competency must be upheld and the proceeding dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.