FEDERAL COURT OF AUSTRALIA Ahmed v Minister for Immigration and Border Protection [2015] FCA 1174 Citation: Ahmed v Minister for Immigration and Border Protection [2015] FCA 1174 Appeal from: Application for extension of time: Ahmed v Minister for Immigration & Anor [2015] FCCA 2300 Parties: WAQAS AHMED v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 980 of 2015 Judge: KATZMANN J Date of judgment: 2 November 2015 Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1)(d) Federal Court Rules 2011 (Cth) r 40.02 Migration Act 1958 (Cth), ss 476, 476A, 477 Date of hearing: 2 November 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 8 Solicitor for the Applicant: The applicant did not appear Solicitor for the First Respondent: Mr M Wiese of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 980 of 2015 BETWEEN: WAQAS AHMED Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE OF ORDER: 2 November 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for an extension of time filed on 20 August 2015 be dismissed. 2. The applicant pay the first respondent's costs in a lump sum of $1,500, instead of taxed costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 980 of 2015 BETWEEN: WAQAS AHMED Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE: 2 November 2015 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Waqas Ahmed is a Pakistani national who is aggrieved by a decision of the Migration Review Tribunal in which it affirmed a decision of a delegate of the Minister to refuse to grant him a Student (Temporary) (Class TU) visa. Mr Ahmed had a right to apply to the Federal Circuit Court for limited forms of relief (see Migration Act 1958 (Cth), s 476 (read with s 474)) but any such application had to be made within 35 days of the date of the decision, unless the court made an order extending the period (Migration Act, s 477). The court could only make such an order if, upon the written application of the applicant, it was satisfied that it was necessary in the interests of the administration of justice to extend the period: Migration Act, s 477(2). 2 Mr Ahmed filed an application in the Federal Circuit Court on 29 January 2014 — a week after the period had expired, and then applied for an extension of time. The application was not heard until 24 July 2015. The primary judge did not consider that the substantive application enjoyed reasonable prospects of success and so was not satisfied that it was in the interests of the administration of justice to extend the time to file it. Consequently, he dismissed the application for an extension of time and ordered Mr Ahmed to pay the Minister's costs. 3 On 20 August 2015 Mr Ahmed filed an application for an extension of time to appeal from the judgment of the Federal Circuit Court. Although s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) confers jurisdiction on the Court to hear and determine appeals from judgments of the Federal Circuit Court exercising original jurisdiction under the Migration Act, the chapeau to subs (1) states that the paragraph is subject, relevantly to any other Act and s 476A(3)(a) of the Migration Act relevantly provides: 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); … 4 On this basis the Minister filed a notice of objection to competency. 5 The Federal Court Rules 2011 (Cth) (FCR or Rules) provide for the filing of an objection to the competency of an appeal (r 36.72(1)) and for the filing of an objection to the competency of an application for judicial review in a migration matter heard in the original jurisdiction of the Court (r 31.24) but there is no rule providing for the filing of an objection to the competency of an application to bring an appeal, such as an application for an extension of time to appeal or an application for leave to appeal. It seems to me that the lacuna in the Rules would not preclude the Court from dismissing the application as not being competent. If the appeal would not be competent, then an application for an extension of time to appeal would surely not be competent. Alternatively, it would be an abuse of process. Either way, the application should be dismissed and the Minister is entitled to an order that Mr Ahmed pay his costs. In any event, the application would have to be dismissed because neither the application nor the draft notice of appeal annexed to the affidavit identifies any error on the part of the primary judge. 6 A party who is entitled to costs may apply to the Court for an order that costs be awarded in a lump sum, instead of, or in addition to, any taxed costs: FCR, r 40.02. The Minister applied for an order that his costs be awarded in a lump sum of $1,914. The application was supported by an affidavit affirmed by Mark Clive Wiese, a solicitor in the employ of the Minister's lawyer, Zac Chami and the lawyer with the daily carriage of the matter under Mr Chami's supervision. The affidavit details the basis upon which the figure was calculated. $1,914 represents the low end of the range Mr Wiese estimated would be recoverable upon taxation. That figure, however, includes the costs of attending court to "collect judgment, if judgment is reserved". When I foreshadowed to Mr Wiese that judgment would not be reserved, he reduced the figure to $1,589, but he was content that the figure be rounded down to $1,500. 7 All powers of the Court with respect to the Court's practice and procedure in civil proceedings must be exercised in the way which best promotes the overarching purpose of the legislation which confers those powers — to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: FCA Act, s 37M. The Court's power to award costs is conferred by s 43 of the FCA Act. I have no doubt that the best way to exercise that power in the present case is to accede to the Minister's request. I am satisfied that the amount of $1,500 is reasonable. 8 For these reasons the orders the Minister seeks ought to be made. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate: Dated: 2 November 2015