Salapo v Minister for Home Affairs

1. The application for an extension of time dated 14 May 2019 be dismissed.
2. The applicant pay the respondent's costs of the application as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 This is an application for an extension of time to appeal from a decision of the Federal Court of Australia delivered on 5 February 2019, Salapo v Minister for Home Affairs [2019] FCA 67. 2 In that matter, the primary judge refused to grant an extension of time under s 477A(2) of the Migration Act 1958 (Cth) (the Act) that had been sought by the applicant in an originating application filed on 19 March 2018. 3 The Minister filed a notice of objection to the competency of the matter on 21 May 2019 on the basis that s 476A(3)(b) of the Act provides that, despite s 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 Court making an order or refusing to make an order under s 477A(2) of the Act. 4 The Minister also filed an outline of submissions in support of the notice of objection to competency on 30 July 2019 explaining these matters. When the matter was called this morning, the applicant appeared and indicated that he wished to seek an adjournment because his counsel had become unavailable and had only informed him of that situation last Thursday, 8 August 2019. I explained to the applicant that I would not grant an adjournment of the application, not only because nothing had been filed on the applicant's behalf, but also because I considered the Minister's position, that there is no right of appeal against the primary judge's order, to be unarguable. 5 In circumstances where s 476A(3) clearly states that an appeal cannot be brought to the Federal Court from a judgment of that Court making an order or refusing to make an order under s 477A(2) of the Act, there is no utility in granting the applicant an extension of time. There is no appeal to which an extension of time could relate. Accordingly, in my view, the only available outcome in this matter is that the application for an extension of time must be dismissed. 6 Therefore, I make orders accordingly. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.