Pirini v Minister for Home Affairs

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

BROMWICH J: 1 By a notice of appeal dated and filed 6 July 2018, the appellant seeks to appeal from a decision of the Federal Court of Australia delivered on 21 June 2018: Pirini v Minister for Immigration and Border Protection [2018] FCA 948. By a notice of contention dated and filed 24 August 2018, the Minister for Home Affairs challenges the competency of the appeal. 2 The primary judge refused to grant an application for an extension of time under s 477A(2) of the Migration Act 1958 (Cth) that had been sought by the appellant in an amended originating application filed on 27 October 2017. The appellant had sought from the primary judge an extension of time to seek judicial review of a decision of the Parliamentary Secretary for Immigration and Border Protection, using the informal title of Assistant Minister, made on 9 August 2017. The relevant decision was to refuse to revoke the mandatory cancellation of the appellant's visa pursuant to s 501CA(4) of the Migration Act. 3 The appellant had 35 days from the decision of the Parliamentary Secretary to file his originating application in accordance with the statutory time limit imposed by s 477A(1) of the Migration Act, which fell on 13 September 2017. As the originating application was not filed until 19 September 2017, it was six days out of time and was therefore incompetent unless the Court considered it in the interests of the administration of justice to extend the time under s 477A(2). 4 In a carefully reasoned judgment, the primary judge found that the interests of the administration of justice threshold was not met, principally upon the basis of the lack of underlying merit in the judicial review challenge. Her Honour therefore refused the grant of an extension of time. I pause to note that, had the extension of time been granted, the almost inevitable outcome would have been that the application for judicial review would have been dismissed given her Honour's reasons for refusing the extension of time. However, the consequence of the refusal of that extension of time was that it also exhausted any further rights of appeal. The reason for that is that s 476A(3) of the Migration Act places limits on the jurisdiction of the Federal Circuit Court of Australia and of this Court. That section states: 476A Limited jurisdiction of the Federal Court … (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) a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2). 5 This Court only has such appellate jurisdiction as is conferred by statute. The principal source of appellate jurisdiction of this Court is s 24 of the Federal Court of Australia Act 1976 (Cth). However s 476A(3)(b) makes it clear that when there is a refusal of an extension of time under s 477A(2) of the Migration Act, an appeal may not be brought to this Court. The Migration Act therefore deprives this Court of the jurisdiction that it might otherwise have had. 6 It is clear that the decision of the primary judge refused the extension of time under s 477A(2) of the Migration Act, and therefore that this Court has no power or competency to consider an appeal from that decision: see Rinka v Minister for Immigration and Citizenship [2009] FCA 1028 at [9]. 7 This Court has the power under s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) to dismiss an appeal because it is doomed to fail for want of competency. That is the present situation. In all of the circumstances, there is no alternative but to conclude that this appeal is incompetent by reason of the clear operation of the provisions of the Migration Act referred to above. 8 Upon that basis, the appeal must be dismissed. I can see no reason why costs should not follow the event. Accordingly, the appellant must pay the respondent's costs as taxed or agreed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.