FEDERAL COURT OF AUSTRALIA

Bandi v Minister for Immigration and Border Protection [2014] FCA 1290

THE COURT ORDERS THAT:

1.    The appellant’s purported appeal be dismissed as incompetent.

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

REASONS FOR JUDGMENT

1    The appellant purports to appeal from orders made by the Federal Circuit Court on 26 June 2014. On that day, the Court made an order that the appellant’s application filed on 7 March 2014 be dismissed.

2    The appellant held a Subclass 572 Vocational Education and Training Sector visa under the Migration Act 1958 (Cth) (“the Act”) and the Migration Regulations 1994 (Cth) (“the Regulations”). On 29 October 2012, a delegate of the Minister for Immigration and Border Protection made a decision to cancel the appellant’s visa under s 116(1)(b) of the Act. Section 116(1) of the Act empowers the Minister to cancel a visa on various grounds, including on the ground that the holder of the visa has not complied with a condition of the visa.

3    The appellant applied to the Migration Review Tribunal (“the Tribunal”) for a review of the decision. The Tribunal considered whether the appellant had complied with condition 8202(3) set out in Schedule 8 to the Regulations and it decided that he had not. The Tribunal then considered whether the discretion to cancel the visa should be exercised. It decided that it should be exercised so as to cancel the visa. In light of those conclusions, the Tribunal, on 28 January 2014, affirmed the decision to cancel the appellant’s visa.

4    Under s 476(1) of the Act, the Federal Circuit Court had jurisdiction to grant relief in relation to the Tribunal’s decision where the Tribunal had committed a jurisdictional error. Under s 477(1) of the Act, an application to the Federal Circuit Court for a remedy to be granted by that Court in the exercise of its jurisdiction under s 476 had to be made within 35 days of the date of the decision. Under s 477(2) of the Act, the Court had the power to extend the 35 day period.

5    The appellant did not make his application to the Federal Circuit Court within the 35 day period. He filed his application on 7 March 2014. He applied for an extension of time in his application.

6    The appellant’s application came before the Federal Circuit Court on 2 June 2014. In his reasons (Bandi v Minister for Immigration & Anor [2014] FCCA 1209), Judge Brown said:

The delay in this case is short. However, in my view, the lack of merit of the substantive application itself militates against there being any extension of time.

Even if the application of extension of time [sic] was granted, there is no prospect that the application would be successful, as there is no discernible legal error in the relevant decision.

For all these reasons, the application should be dismissed and the applicant should pay the first respondent’s costs fixed in the sum of $6,646.00.

7    Section 476A(1) of the Act describes the jurisdiction of this Court in relation to migration decisions. Section 476A(3) provides as follows:

476A    Limited jurisdiction of the Federal Court

(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); or

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

Section 24 of the Federal Court of Australia Act 1976 (Cth) describes the appellate jurisdiction of this Court.

8    As I have said, the appellant purports to appeal to this Court. The purported appeal relates to a judgment of the Federal Circuit Court refusing to make an order under s 477(2) of the Act. It seems clear from the terms of s 476A(3) of the Act that the appeal is incompetent. That is the effect of the authorities: BZABK v Minister for Immigration and Citizenship and Another (2012) 205 FCR 83 per Foster J at [30], [36]-[38]; SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 per Rares J; SZQYP v Hannigan [2012] FCA 723 per Katzmann J at [18]-[19]; AZACM v Minister for Immigration and Citizenship [2013] FCA 710 per Mansfield J at [9]-[11].

9    The first respondent does not seek an order for costs.

10    In the circumstances, the order of the Court will be that the appellant’s purported appeal be dismissed as incompetent.

Associate:    

Dated:    27 November 2014