Neagoe v Minister for Immigration, Citizenship and Multicultural Affairs

1. The first respondent have leave to move on the notice of objection to competency filed on 9 December 2022.
2. The notice of objection to competency be upheld.
3. The notice of appeal filed on 19 September 2022 be dismissed.
4. The applicant pay the first respondent's costs of the application as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCEVOY J: 1 In the present application the first respondent moves on a notice of objection to the competency of an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) delivered on 18 August 2022: Neagoe v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 674. 2 The primary judge refused to grant an application seeking an extension of time under s 477(2) of the Migration Act 1958 (Cth) in which the applicant sought judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent not to grant the applicant a Partner (Temporary) (Class UK) (partner visa). The applicant is a citizen of Romania who had arrived in Australia on 13 May 2016 on an E-Visitor (Subclass 651) Visa. 3 The application had been filed 206 days outside the statutory timeframe. After weighing the relevant considerations the primary judge was not satisfied that the grant of an extension of time to make an application for judicial review was in the interests of the administration of justice. Accordingly, the application pursuant to s 477(2) was dismissed. 4 The applicant filed a notice of appeal on 19 September 2022. The appeal grounds are as follows: 1. The judge erred by not finding that the Tribunal failed to consider or give proper genuine and realistic consideration to materials on hand 2. The primary judge failed to consider the information and claims I put forward at the AAT hearing 3. Please accept my grounds of appeal as I will elaborate further once I have engaged the services of a barrister. I am lodging my appeal to meet he [sic] required deadline. 5 The respondent Minister filed a notice of objection to the competency of the appeal on 9 December 2022 in the following terms: Grounds of review 1. The appellant seeks to appeal from the orders of the Honourable Judge Mansini (the primary judge) made on 18 August 2022. 2. The primary judge dismissed with costs the appellant's application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (the Migration Act). 3. Section 476A(3)(a) of the Migration Act provides that, despite section 24 of the Federal Court of Australia Act 1976 (Cth), an appeal may not be brought to the Federal Court of Australia from a judgment of the Federal Circuit and Family Court of Australia (Division 2) that refuses to make an order under s 477(2) of the Migration Act. 4. As the orders of the primary judge made on 18 August 2022 refused to make an order under s 477(2) of the Act, the Federal Court has no power to consider the purported appeal given the effect of s 476A(3)(a) of the Migration Act: Hossen v Minister for Immigration and Border Protection [2017] FCA 159 at [23]; BZABK v Minister for Immigration and Citizenship [2012] FCA 774 at [43]-[44]; MZZTY v Minister for Immigration and Border Protection [2013] FCA 1289 at [11]-[12]. 6 The Minister also filed an affidavit of Michelle Anne Harradine in support of the notice of objection on 13 December 2022, and short written submissions on 1 February 2023. 7 The notice of objection was first listed for hearing on 24 February 2023. On 29 January 2023 the applicant requested that the notice of objection be adjourned to July 2023, by which time the applicant considered that he may have the funds to engage counsel. By email dated 31 January 2023 the Minister opposed the adjournment of the hearing on the basis that: 1. There would be limited utility in granting an adjournment in circumstances where the first respondent's position is that the purported appeal is incompetent and the Court must address the question of competency as an aspect of its duty to consider its jurisdiction. 2. The appellant has also provided no evidence of: his attempts to contact Legal Aid Victoria (or their response and when it was received); what funds the appellant will receive from overseas (or from whom) in July 2023 and how this will enable him to obtain legal representation; or what steps and enquiries the appellant has already undertaken/ made to secure legal representation, noting these proceedings concern a purported appeal and have been on foot since 14 September 2022. 8 On 31 January 2023 I determined that in all the circumstances it would not be appropriate to grant an adjournment of the competency hearing until after July 2023 and the parties were notified accordingly. 9 The applicant did not file written submissions prior to the competency hearing, although in an email dated 22 February 2023 he contended, among other things, that without legal representation he was at a great disadvantage and that there was no utility in him attending the hearing. Attached to this email the applicant provided a copy of a letter addressed to him and dated 29 December 2022 from Victoria Legal Aid which advised of the refusal of his application for legal assistance. 10 At the commencement of the competency hearing on 24 February 2023 there was no appearance by the applicant, notwithstanding that arrangements had been made for him to be brought to Court from the Melbourne Immigration Transit Accommodation (MITA). In the absence of the applicant, and any explanation for his non-attendance by the Minister's solicitor, I adjourned the competency hearing. 11 The relevant circumstances concerning the applicant's non-attendance were set out in an email from the Minister's solicitors dated 27 February 2023. The Minister's solicitors explained that after the hearing the MITA informed them that at 2:09pm that afternoon the MITA Detention Operations team received an email titled "Declined Escort Notification" from Serco Transport and Escort Team and within the email it was noted that the applicant had informed the Court via email about him not attending the hearing. It would seem therefore that the applicant had declined to attend the competency hearing. 12 Having regard to the fact that the applicant had elected not to attend the competency hearing, the notice of objection to competency was re-listed for hearing on 24 March 2023. The parties were notified once again that arrangements would be made for the applicant to be brought to Court for the hearing. 13 On 21 March 2023 the Minister's solicitors requested that the applicant be able to appear by way of Microsoft Teams if he wished to do so. The Court was informed by the Minister's solicitors that the applicant had indicated in subsequent correspondence to them that he did not propose to appear or participate further in the proceeding. The Minister's solicitors proposed that if the applicant refused to appear before the Court remotely, the position could be confirmed at the time by an officer of the MITA. 14 On 22 March 2023 the Minister filed an affidavit of Mr Rohan White sworn on that date which annexed correspondence between the Minister's solicitors and the applicant. The correspondence included a letter dated 10 March 2023 from the Minister's solicitors to the applicant seeking confirmation of, among other things, whether the applicant wished to appear at the adjourned hearing of the notice of objection to competency or consent to the Court considering the objection to competency on the papers; or whether he wished to continue with the proceeding or finalise it by filing a notice of discontinuance or signing proposed consent orders dismissing the appeal. The applicant responded to the Minister's solicitors by email on 17 March 2023 in which he stated, among other things, that he would not be acceding to any of the requests made by the Minister's solicitors and would not be participating in the competency hearing. 15 Nonetheless, at the hearing on 24 March 2023, the applicant did appear by way of Microsoft Teams. He informed the Court, in substance, that he had not been able to obtain legal representation and that he could not respond to the Minister's application without the benefit of legal advice. 16 The Minister's solicitor reiterated the Minister's submission that by reason of s 476A of the Act an appeal may not be brought to this Court where the FCFCOA has refused to make an order extending time under s 477(2) of the Act. She otherwise relied on the Minister's written submissions. 17 The Minister's submission, that there is no right of appeal against the primary judge's order refusing to grant the application under s 477(2) of the Act, is plainly correct. It is unnecessary to consider the underlying merits of the proceeding as they are irrelevant to the question of whether this Court has jurisdiction to hear this appeal: Singh v Minister for Immigration and Border Protection [2017] FCA 1316, at [3]-[4] (Pagone J); ALL16 v Minister for Immigration and Border Protection [2018] FCA 419 at [4], [24] (Gleeson J). 18 In BDA16 v Minister for Home Affairs [2019] FCA 85 at [16], Griffiths J observed that: … a jurisdictional bar is created by s 476A(3)(a) of the Act in respect of appeals from a judgment of the FCCA that "makes an order or refuses to make an order under subsection 477(2)". 19 It is clear that no appeal to this Court lies from a judgment of the FCFCOA refusing to extend time under s 477(2) of the Act. In Heller v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 907 at [20], Collier J noted: The intention of the legislature, as manifested by s 477(2) and s 476A(3)(a) of the Migration Act, appears to be to prevent ongoing litigation concerning judicial review of decisions of the Tribunal where applications for judicial review are made out of time. In essence - where an applicant fails to seek judicial review by the Federal Circuit Court of a migration decision of the Tribunal under the Migration Act within 35 days (as required by s 477(1) of the Migration Act), the legislation rests the final decision as to whether to grant an extension of time with the Federal Circuit Court. 20 Similar statements regarding the operation of s 476A of the Act have been made in BCL16 v Minister for Immigration and Border Protection [2018] FCA 1870, at [6] - [7] (O'Callaghan J), MZZTY v Minister for Immigration and Border Protection [2013] FCA 1289, at [11] (Tracey J) and Singh at [3]-[4] (Pagone J). 21 For completeness it should be noted that the Minister's notice of objection was filed out of time. For this reason the Minister sought leave (to the extent necessary) to move on the objection to competency. The Minister submitted that the applicant does not claim to suffer prejudice arising from the late filing of the notice of objection to competency, nor does any prejudice arise as the applicant has had more than three months since filing the notice to address the competency of the appeal orally or in writing, and has not done so. The Minister submitted that the Court must nevertheless address the question of competency as an aspect of its duty to consider its jurisdiction: Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8 at [8]; CWX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 673 at [5]. 22 There is no prejudice which the applicant has or can identify which would flow from time being extended to allow the Minister to rely on its notice of objection in circumstances where the Court must address the question of competency as an aspect of its duty to consider its jurisdiction. Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) it is appropriate therefore to dispense with the requirements of r 31.24(1) to allow the Minister to rely on the notice of objection: see, for example, Heller, at [21]-[22]. 23 The judge below having refused to make an order under s 477(2), and in circumstances where s 476A(3)(a) provides that an appeal cannot be brought to this Court from a judgment of the FCFCOA refusing to make an order under s 477(2) of the Act, there is no utility in permitting the appeal to continue. This is even in circumstances where the applicant was unable to obtain legal representation because legal representation could not have affected the position. 24 For these reasons the Minister's notice of objection to competency should be upheld and the applicant's notice of appeal should be dismissed for lack of jurisdiction. The applicant must pay the Minister's costs as agreed or assessed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.