FEDERAL COURT OF AUSTRALIA CEO15 v Minister for Immigration and Border Protection [2017] FCA 232 Appeal from: Application for extension of time and leave to appeal: CEO15 & Ors v Minister for Immigration & Anor [2016] FCCA 2795 File number: VID 1251 of 2016 Judge: COLLIER J Date of judgment: 8 March 2017 Catchwords: MIGRATION – application for extension of time and leave to appeal – Div 9.6 Federal Court Rules 2011 (Cth) – litigation representative appointed for minor applicant – notice of objection to competency – s 476A(3)(a) Migration Act 1958 (Cth) – no jurisdiction to hear appeal – no jurisdictional error in primary Judge's decision – dismissed Legislation: Migration Act 1958 (Cth) ss 476A(3)(a), 477(2) Federal Court of Australia Rules 2011 (Cth) rr 1.34, 9.61, 9.62, 9.63, 9.64 and 9.66 Date of hearing: 7 March 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 8 Counsel for the Applicants: The First and Second Applicants appeared in person. The First Applicant appeared on behalf of the Third Applicant. Solicitor for the First Respondent: Ms M Gangemi of the Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs Solicitor for the Third Respondent: The Third Respondent filed a submitting notice, save as to costs ORDERS VID 1251 of 2016 BETWEEN: CEO15 First Applicant CEP15 Second Applicant CEQ15 Third Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent FEDERAL CIRCUIT COURT OF AUSTRALIA Third Respondent JUDGE: COLLIER J DATE OF ORDER: 7 MARCH 2017 THE COURT ORDERS THAT: 1. Applicant CEO15 be appointed the litigation representative of applicant CEQ15 for the purposes of this proceeding pursuant to r 9.61 of the Federal Court of Australia Rules 2011 (Cth). 2. The application filed on 13 October 2016 be dismissed. 3. The first and second applicants pay the costs of the first respondent fixed in the amount of $1,756. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLLIER J: 1 The applicants are all citizens of India, and are respectively a wife, husband and daughter. At the commencement of the hearing before me, Ms Gangemi for the Minister drew to my attention that the third applicant, CEQ15, was a minor, and was not represented by a litigation representative under the Federal Court Rules 2011 (Cth) (the Rules). To that extent she was not competent to commence litigation in the Federal Court. The first applicant, CEO15, was prepared to act as her daughter's litigation representative. Pursuant to rr 1.34, 9.61, 9.62, 9.63, 9.64 and 9.66 of the Rules, I ordered that applicant CEO15 be appointed the litigation representative of applicant CEQ15 for the purposes of the commencement and conduct of this litigation. 2 In summary, the proceedings concern an application filed 13 October 2016 for extension of time and leave to appeal from a decision of the Federal Circuit Court delivered 22 October 2015. In the primary decision, the Federal Circuit Court had dismissed an application for an extension of time in which to file an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister to refuse the applicants a protection visa under the Migration Act 1958 (Cth) (the Migration Act). It is not in dispute that, in dismissing the application, the primary Judge was exercising jurisdiction under s 477(2) of the Migration Act. 3 On 28 November 2016 the Minister filed a notice of objection to the competency of the application. The grounds of objection were: 1. On 22 September 2016, Judge Harland of the Federal Circuit Court (FCC) made a decision not to extend time under s 477(2) of the Migration Act 1958 (the Act), which is the decision that the applicants seek to challenge in this proceeding (the FCC decision). 2. Section 476A(3)(a) of the Act provides that an appeal may not be brought from a judgment of the FCC where an order has been made refusing to extend time under s477(2) of the Act. 3. As a result, the Federal Court does not have jurisdiction in relation to this application which seeks an extension of time to appeal and leave to appeal from the FCC decision. 4 Section 476A(3)(a) of the Migration Act relevantly provides: 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) … 5 The applicants appeared in person without the assistance of an interpreter. They filed no written submissions. 6 I am satisfied that the Federal Court of Australia has no power to entertain an appeal from the decision of the primary Judge. To that extent, any interlocutory application in this Court seeking to facilitate such an appeal is not only futile, but similarly incompetent. 7 I note that s 476A(3)(a) does not exclude an application for judicial review of a decision of a Federal Circuit Court Judge on the basis of jurisdictional error infecting the primary decision. No such claim was, however, made by the applicants, and I am unable to identify any basis upon which such a claim could be made in the circumstances of this case where her Honour has comprehensively addressed issues arising in the case before her. 8 The proper order is to dismiss the application, with costs against the first and second applicants fixed in the sum of $1,756. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 8 March 2017