FEDERAL COURT OF AUSTRALIA

SZRQY v Minister for Immigration and Border Protection [2014] FCA 223

THE COURT ORDERS THAT:

1.    The notice of objection to competency filed on 10 March 2014 is upheld.

2.    The notice of appeal filed on 24 February 2014 is dismissed.

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Court has before it today a notice of objection to competency, which was filed by the Minister for Immigration and Border Protection (Minister) on 10 March 2014. The Minister objects to the competency of an appeal which was filed by the appellant on 24 February 2014. The appeal relates to a decision of Judge Manousaridis of the Federal Circuit Court, handed down on 7 February 2014. In that judgment, the judge rejected an application brought by the appellant against a decision of the Refugee Review Tribunal (Tribunal).

2    In his reasons for judgment, the Federal Circuit Court judge refused to extend the 35 day time period prescribed by s 477(1) of the Migration Act 1958 (Cth) (Act). The notice of appeal which the appellant has filed in this Court seeks to appeal that decision. That decision is not capable of being the subject of an appeal to this Court, because of the operation of s 476A(3) of the Act. The meaning and operation of that provision was explained by the Full Court of the Federal Court in Tang v Minister for Immigration and Citizenship [2013] FCAFC 139.

3    It is evident from that decision that although a decision of the Federal Circuit Court refusing to extend time cannot be appealed to this Court, nevertheless this Court has original jurisdiction to entertain a challenge against such a decision, under s 39B of the Judiciary Act 1903 (Cth). It is evident from the terms of the relief set out in the appellant’s notice of appeal that he may well have had in mind some form of constitutional writ relief, because in the orders he sought, he asked for mandamus and certiorari to issue, albeit in respect of the Tribunal, rather than the Federal Circuit Court.

4    It is clear that the notice of appeal must be dismissed. I raised with Ms Hooper, who appeared for the Minister, whether or not a letter had been sent to the appellant drawing his attention to the effect of s 476A(3), before the objection to competency was filed. She indicated to me that no such letter had been sent, and that it was not her practice to send letters advising appellants of their rights. I am surprised that that attitude was adopted. To my mind, each case needs to be looked at individually, and this is a case where I would have expected that an early communication to the appellant drawing his attention to the relevant provision may well have avoided the need, cost and resources for a formal objection to competency to be filed.

5    I believe that the failure to write to the appellant in this way warrants no order for costs being made in the Minister’s favour. For these reasons I make the orders set out above.

Associate:

Dated:    13 March 2014