FEDERAL COURT OF AUSTRALIA

EBT16 v Minister for Home Affairs [2019] FCA 832

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE AND REVISED)

RANGIAH J:

1    On 14 January 2019, a judge of the Federal Circuit Court of Australia dismissed the applicant’s application for an extension of time under s 477(2) of the Migration Act to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse the applicant a Protection Visa.

2    On 18 February 2019, the applicant filed in this Court an application for an extension of time for leave to appeal against the judgment of the Federal Circuit Court. The first respondent has filed a notice of objection to competency on the basis that, under s 476A(3)(a) of the Migration Act 1958 (Cth), an appeal may not be brought from an order of the Federal Circuit Court refusing to make an order pursuant to s 477(2) of the Migration Act.

3    In BDA16 v The Minister for Home Affairs [2019] FCA 85, Griffiths J said at [16]:

As the Minister emphasised, while this Court can hear appeals from the FCCA under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), a jurisdictional bar is created by s 476A(3)(a) of the Act in respect of appeals from a judgment of the FCCA that “makes an order or refuses to make an order under subsection 477(2)”. This jurisdictional bar has been applied in numerous cases involving attempted appeals from decisions of the FCCA to refuse to extend time under that statutory provision, including Singh v Minister for Immigration and Border Protection [2017] FCA 1316 (Singh) and, more recently, in BCL16 v Minister for Immigration and Border Protection [2018] FCA 1870 (BCL16). Having regard to these authorities, it is unnecessary to consider the underlying merits of the proceeding in the FCCA because they are irrelevant to the question whether this Court has jurisdiction to hear an appeal (see Singh at [4] per Pagone J).

4    As this Court has no jurisdiction to hear and decide any appeal against a refusal by the Federal Circuit Court to make an order under s 477(2) of the Act, it also lacks jurisdiction to grant an extension of time for leave to appeal against such a judgment.

5    It follows that the application must be dismissed with costs.

Associate:    

Dated:    4 June 2019