FEDERAL COURT OF AUSTRALIA

Rinka v Minister for Immigration and Citizenship [2009] FCA 1028

SOYIET SARUNI RINKA v MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 900 of 2009

PERRAM J

4 SEPTEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The notice of motion be dismissed with costs.

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REASONS FOR JUDGMENT

1                                             On 22 June 2006 the respondent made a decision to cancel the applicant’s Mr Rinka’s visa which entitled him to be in Australia.  He is a citizen of Kenya who arrived in Australia on a tourist visa in August 1998.  On 11 July 2001 he was granted a permanent spouse Class AS subclass 801 visa on the basis of his relationship with an Australian woman.  By that time, he and his partner had one child, a son born in 1999.  Subsequently there was another son born in 2002.

2                                             In December 2001 Mr Rinka was charged with two serious offences and, on 5 September 2003, he was convicted of those offences.  He was sentenced to concurrent terms of imprisonment of two years, and four years and six months respectively.

3                                             On 20 February 2006 a delegate of the Minister sent Mr Rinka a notice that cancellation of his visa was being considered, presumably on character grounds.  Following further correspondence which it is not necessary to relate, the Minister’s ultimate decision, on 22 June 2006, was to cancel Mr Rinka’s visa on character grounds. 

4                                             Subsequently on 27 November 2006 Mr Rinka applied for a protection visa, which application was refused by a delegate of the Minister on 5 February 2007.  On 4 April 2007 the Refugee Review Tribunal affirmed that decision.  Mr Rinka then unsuccessfully applied to the Minister for a more favourable decision. 

5                                             On 1 May 2009 Mr Rinka commenced proceedings in this Court.  The proceeding which was commenced in this Court was an application to review the Minister’s determination.  That determination was made under s 501 of the Migration Act 1958 (Cth) (“the Act”).  Mr Rinka’s application to this Court was made 12 days out of time.  The Court has a discretion to extend the 35-day period provided for in the circumstances set out in s 477A(2) of the Act. 

6                                             Mr Rinka’s application came before Lindgren J on 19 June 2009 and 10 July 2009, at which time Mr Rinka was represented by counsel.  His Honour received extensive argument on the question of whether he should extend the time pursuant to s 477A(2).  His Honour looked at, and considered, Mr Rinka’s arguments relating to the hardship which his removal from Australia would bring upon his children.  Ultimately, Lindgren J concluded that it was not appropriate to extend the time:  see Rinka v Minister for Immigration and Citizenship [2009] FCA 886.  It followed, once he had concluded that time should not be extended, that the application was incompetent, and his Honour inevitably dismissed the application.

7                                             Mr Rinka has now filed a notice of motion by which he seeks an order that:

…the decision of the Federal Court be declared null and void and request that a Full Bench make a determination of my case.

8                                             Section 476A(3)(b) of the Migration Act is as follows:

(3) Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a)        …;

(b)                a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).

9                                             It follows from what I have said that Lindgren J’s decision was an order which refused to make an order under section 477A(2).  Consequently, the unavoidable effect of section 476A(3)(b) is that the Federal Court has no jurisdiction to entertain an appeal from Lindgren J’s decision.

10                                          It follows, therefore, that the application before me is incompetent and I accordingly dismiss it.

11                                          The Minister applies for costs.  There is no reason why the ordinary rule should not apply.   The applicant is to pay the respondent’s costs of the application.

Associate:

Dated:         4 September 2009