Background
BCD22, an Indian citizen, applied for a protection visa in 2016. After a ministerial delegate refused the visa, he sought review in the Administrative Appeals Tribunal. He did not attend the Tribunal hearing and later said that he had not received the invitation. The Tribunal dismissed his review application and, after he failed to seek reinstatement within the prescribed period, confirmed the dismissal.
BCD22 then asked the Federal Circuit and Family Court of Australia (Division 2) to extend the time for commencing judicial-review proceedings. That court refused, finding that the statutory notification requirements had been met, the Tribunal had acted reasonably, and no arguable jurisdictional error had been shown. BCD22 subsequently applied to the Federal Court for an extension of time to seek leave to appeal, arguing that the primary judge had wrongly upheld the adequacy of his opportunity to challenge the Tribunal’s dismissal and had failed to protect him from disadvantage as a self-represented litigant.
The Court’s Holding
Justice Stellios dismissed the application because s 476A(3)(a) of the Migration Act 1958 (Cth) prohibits an appeal to the Federal Court from a Division 2 judgment making or refusing an order under s 477(2). The Federal Court therefore had no jurisdiction to entertain the proposed appeal, leaving it with no prospect of success. The Court did not need to determine the merits of BCD22’s proposed grounds, although it noted that the primary judge had applied the correct principles governing an extension of time.
The Court also held that r 36.72(4) of the Federal Court Rules 2011 (Cth) did not prevent an award of costs merely because the Minister had not filed a notice objecting to competency. That rule applies after service of a notice of appeal, not to an application for an extension of time to seek leave to appeal accompanied by a draft notice. Applying the usual rule that costs follow the event, the Court ordered BCD22 to pay the Minister’s costs, fixed at $4,500.
Key Takeaways
- Section 476A(3)(a) bars Federal Court appeals from Division 2 decisions granting or refusing extensions of time under s 477(2) of the Migration Act.
- An application for leave, or for more time to seek leave, cannot overcome the Federal Court’s lack of jurisdiction over the proposed appeal.
- The costs protection in r 36.72(4) concerning an unfiled competency objection does not apply to an extension-of-time application made before a notice of appeal is filed and served.
Why It Matters
The decision underscores that statutory limits on migration appeals are jurisdictional, not merely discretionary. Even potentially arguable complaints about the underlying proceedings cannot be considered when Parliament has expressly prohibited the Federal Court from hearing the proposed appeal.
It also clarifies the operation of the Federal Court Rules on competency objections and costs: an application to extend time for seeking leave to appeal is governed separately from an appeal commenced by a notice of appeal, so the respondent may recover costs despite not filing a notice of objection under r 36.72.