WZASS v Minister for Home Affairs

1. The notice of objection to competency be upheld.
2. The appeal be dismissed.
3. The appellant to pay the first respondent's costs of today assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 The appellant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 11 April 2012. On 25 June 2012 the appellant applied for a protection visa. 2 A delegate of the Minister refused the application for a protection visa on 17 August 2012. The appellant applied for review of that decision to the Refugee Review Tribunal. On 23 January 2013, the Tribunal affirmed the delegate's decision to refuse the appellant a protection visa. 3 The appellant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision on 19 June 2013. Under s 477(1) of the Migration Act 1958 (Cth), an application to the Federal Circuit Court to review the Tribunal's decision must be made within 35 days of the decision. The appellant filed his application 112 days after the 35 day time limit. Therefore the appellant required an extension of time. Section 477(2) of the Migration Act provides that the Federal Circuit Court may extend the 35 day time period where it is satisfied that it is in the interests of justice to do so. 4 The primary judge heard the application to extend time on 27 November 2013 and 18 December 2013. On 22 November 2018 the primary judge ordered that the application for an extension of time be dismissed. 5 The appellant filed a notice of appeal in this Court on 4 December 2018. It includes a single ground of appeal, being 'Jurisdictional error due to no following or facts presented'. 6 The Minister lodged a notice of objection to the competency of the appeal. The basis of the objection is that: Pursuant to s 476(3)(a) of the Act, an appeal may not be brought to the Federal Court from a judgment of the Federal Circuit Court that refuses to make an order under s 477(2) of the Act. 7 The jurisdiction of the Federal Court to hear appeals from decisions of the Federal Circuit Court is found in s 24 of the Federal Court of Australia Act 1976 (Cth). However, s 476A(3) of the Migration Act relevantly provides: 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); … 8 As noted, the appellant's application for an extension of time was refused by the primary judge under s 477(2) of the Migration Act. 9 Accordingly, the Minister's position is undoubtedly correct: see, for example, the cases collected in BDA16 v Minister for Home Affairs [2019] FCA 85 at [16]; and Singh v Minister for Immigration and Border Protection [2017] FCA 1316 at [3]. I note that the Minister's solicitors also explained the basis of the objection in correspondence with the appellant. 10 It is unnecessary to consider the underlying merits of the proceeding in the Federal Circuit Court because they are irrelevant to the question whether this Court has jurisdiction to hear an appeal (Singh at [4]). 11 It follows that the notice of objection to competency is upheld and the appeal is dismissed. Costs will follow the event. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.