Singh v Minister for Immigration and Border Protection

1. The application be dismissed with no orders as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 This is an application for an extension of time to file an appeal from the decision of Judge McNab made on 31 March 2017. The application to his Honour had itself been an application to extend the time to make an application pursuant to s 477(2) of the Migration Act 1958 (Cth) ("the Act"). His Honour dismissed that application on the grounds that there was no utility in granting the extension of time because there was no reasonable prospect of the appellants succeeding in a challenge to a decision by the Tribunal in respect of which they were seeking leave to appeal. 2 The matter was called for hearing in the usual way, but the applicant did not appear. In those circumstances, the Minister sought an order pursuant to r 35.33 for the determination of the matter in the absence of the applicant. It is appropriate for the matter to be dealt with in the absence of the applicant because the issue is clear on the face of the materials. 3 This Court has no jurisdiction to hear an appeal from a decision by the Federal Circuit Court refusing to make an order under s 477(2) of the Act. Section 476A(3)(a) of the 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); […] It follows that the Federal Court does not have jurisdiction to hear an appeal from the order of Judge McNab made on 31 March 2017: 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 and 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]; MZZTJ v Minister for Immigration and Border Protection [2014] FCA 920. Accordingly, there is no utility in the proceeding being adjourned or not being dealt with on its merits today. Similarly, there is no utility in granting an extension of time to file an appeal from a decision from which an appeal cannot be brought to this Court. 4 It is unnecessary to consider the underlying merits of the application which were considered by his Honour in the context of deciding whether to grant an extension of time. Those matters were relevant to whether the extension ought to have been granted but do not arise for consideration of whether this court has jurisdiction to hear an appeal that the Federal Circuit Court has denied. 5 The Minister sought costs, but has not filed a notice of objection to competency in the time required by the Federal Court Rules. Rule 31.05 requires that a respondent file a notice objecting to competency before costs may be ordered where a proceeding has been decided in favour of a respondent on the basis of lack of competency. An application was made today to file a notice of objection to competency, but notice of that application had not been given to the applicant, although the Minister had corresponded with the applicant on other matters by letter and email on 27 October 2017. In those circumstances, notice of an application to file an objection to competency that would enliven an entitlement to costs, or at least that would remove a disentitlement under r 31.05, has not been served or given to the applicant, and I declined to grant leave for the filing of an objection to competency. It follows, however, that the applicant is not entitled to costs. 6 Accordingly, the application will be dismissed with no orders as to costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.