FEDERAL COURT OF AUSTRALIA

CEE15 v Minister for Immigration and Border Protection [2018] FCA 769

ORDERS

THE COURT ORDERS THAT:

1.    The Application for an extension of time is dismissed.

2.    The proceeding is dismissed.

3.    The Applicant is to pay the costs of the First Respondent, either as taxed or agreed.

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

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding, identified by the pseudonym CEE15, applied for a Protection (Class XA) visa in April 2013. A delegate of the Minister refused that application in January 2014.

2    An application for review of that decision was unsuccessful. The Refugee Review Tribunal affirmed the delegate’s decision in March 2015.

3    An application for review of the Tribunal’s decision was not filed with the Federal Circuit Court of Australia until October 2015. The Applicant claimed that he was unaware of the Tribunal’s decision until about a week before the application was filed with that Court.

4    The Federal Circuit Court dismissed the application on 14 November 2017: CEE15 v Minister for Immigration and Border Protection [2017] FCCA 3363. Although an order of that Court granted “leave to proceed with the application filed on 21 October 2015 out of time”, it is apparent from the reasons for decision that the Court “dismiss[ed] the application for an extension of time”: [2017] FCCA 3363 at [11]. Albeit a matter of some uncertainty, those reasons make apparent that that Court, pursuant to s 477(2) of the Migration Act 1958 (Cth), refused to extend the 35 day time limit within which an application was required to be filed. The orders were made on the day of the hearing when the Applicant had appeared in person.

5    The Applicant now wishes to appeal to this Court. Section 24 of the Federal Court of Australia Act 1976 (Cth) sets forth the appellate jurisdiction which is entrusted to this Court.

6    On 30 January 2018 there was filed in this Court an Application for an extension of time. An extension of time to appeal to this Court is required because r 36.03 of the Federal Court Rules 2011 (Cth) provides that an appeal is to be filed within 21 days. Rule 36.05 provides for the manner in which an application may be made for an extension of time. The Draft Notice of Appeal set forth the proposed Ground of Appeal, should an extension of time be granted, as follows:

The decision of the Federal Circuit Court is affected by jurisdictional error

The Applicant appeared before this Court unrepresented. He was assisted by an interpreter. The Respondent Minister appeared by way of his solicitor.

7    An affidavit filed by the Applicant in support of the Application seeks to explain the delay between 14 November 2017 and 30 January 2018 by reference to:

    his being told on 14 November 2017 that he “would receive a copy of the Order of the Court and a copy of the decision by mail” but his never receiving a copy of the Order or the decision;

    his attendance at the Registry of this Court on or about 15 January 2018 when he was told “that there was nothing on the system” but his receiving on that day of a copy of the Order made on 14 November 2017; and

    his being a “layperson with no knowledge of the law and its procedure” and his having “no idea that [he] had to make an appeal within 21 days of the date of decision”.

8    The Application for an extension of time is to be refused because:

    section 476A(3)(a) of the Migration Act provides that “[d]espite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from … a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2)”. It has been said that the terms of ss 476A(3)(a) and 477(2) are “unambiguous” and that an appeal from a refusal to make an order under s 477(2) “is not competent”: AWI16 v Minister for Immigration and Border Protection [2018] FCA 284 at [16] to [17] per Collier J. No reliance is sought to be placed upon the original jurisdiction of this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) to grant relief in the nature of an order of certiorari to quash the decision of the primary Judge: cf. Tang v Minister for Immigration and Citizenship [2013] FCAFC 139 at [11], (2013) 217 FCR 55 at 59 per Rares, Perram and Wigney JJ; CNC15 v Federal Circuit Court of Australia [2017] FCA 1540 at [14] per Charlesworth J.

9    Although it is concluded that the better reading of the reasons for decision of the primary Judge is that he refused to extend time pursuant to s 477(2) of the Migration Act, there nevertheless remains some uncertainty as to whether that Judge proceeded to dismiss the proceeding before him on its merits. Even had that reading of the reasons prevailed, the same result would nevertheless have been reached. Irrespective of s 476A(3)(a), and assuming that an appeal from a refusal to make an order under s 477(2) was otherwise “competent”, an order would nevertheless not have been made extending the time within which to appeal to this Court because:

    the Applicant was present in Court on 14 November 2017 and presumably was aware that his application to that Court had been dismissed. There is no satisfactory explanation – other than his waiting for a copy of the Orders and reasons for decision by mail – for his not then pursuing any appeal rights if he saw fit to do so. It remained a matter for the Applicant “to make proper inquiries to determine when [his] appeal was required to be lodged”: SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33] per Cowdroy J. The statement made by the Applicant during the course of the hearing before this Court that his legal adviser failed to advise him as to the outcome of his application to the Federal Circuit Court or as to any right to appeal in November 2017 is, with respect, not a satisfactory explanation: cf. Wolcott v Davis (1984) 4 FCR 124 at 128 per Muirhead J.

More importantly, and again assuming that an appeal was otherwise “competent”, the Application for an extension of time is to be refused because:

    the manner in which the Federal Circuit Court Judge resolved the Application for an extension of time exposes no self-evident appellable error. The primary Judge set forth the relevant principles guiding the exercise of the discretion to extend time and applied those principles to the facts. There is nothing self-evidently erroneous as to the manner in which that discretion was exercised; and

    the proposed Ground of Appeal as set forth in the Draft Notice of Appeal raises no reason to question the correctness of the decision reached by the primary Judge. To the extent that it may be assumed that the Applicant would seek to contend that the Federal Circuit Court Judge erred in his conclusion as to the Grounds of Review then being advanced before that Court, there is no self-evident error in the assessment by that Judge of those Grounds. The primary Judge concluded that there was “no jurisdictional error … disclosed in the manner in which the Tribunal approached its task”: [2017] FCCA 3363 at [7].

10    The Application for an extension of time in which to appeal is thus to be dismissed.

11    The proceeding would also have been dismissed:

    had the reasons for decision of the Federal Circuit Court been construed as a dismissal of the substantive application – as opposed to an order refusing to extend time; or

    had reliance been placed upon s 39B of the Judiciary Act.

There remained no reason to question the reasons or decision of the primary Judge. The absence of any prejudice claimed by the Respondent Minister does not dictate any contrary conclusion.

THE ORDERS OF THE COURT ARE:

1.    The Application for an extension of time is dismissed.

2.    The proceeding is dismissed.

3.    The Applicant is to pay the costs of the First Respondent, either as taxed or agreed.

Associate:

Dated:    30 May 2018