CXK17 v Minister for Immigration and Border Protection [2018] FCA 1872

CXK17 v Minister for Immigration and Border Protection [2018] FCA 1872

The proceeding was incompetent because it purported to appeal from a Federal Circuit Court refusal to extend time under s 477(2) of the Migration Act 1958 (Cth), and s 476A(3)(a) prevents such an appeal to the Federal Court. Although judicial review in the Court's original jurisdiction may be available, it was not appropriate to treat the notice of appeal as such an application because the grounds were stated at a wide level of generality and did not identify the alleged jurisdictional error with sufficient precision.

Jurisdiction
Australia
Judgment Date
19 November 2018
Procedural Posture
Appeal From Federal Circuit Court Orders Dismissing an Application for Judicial Review in a Migration Matter / Notice of Objection to Competency; Proceeding Dismissed
Outcome
Proceeding commenced by notice of appeal dismissed as incompetent.
Legal Topics
['federal Court Appellate Jurisdiction' 'judicial Review' 'jurisdictional Error' 'extension of Time' 'safe Haven Enterprise Visa']
['administrative Law' 'migration Law' 'practice and Procedure'] ['federal Court Appellate Jurisdiction' 'judicial Review' 'jurisdictional Error' 'extension of Time' 'safe Haven Enterprise Visa']

Case Brief

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Procedural Posture

Appeal From Federal Circuit Court Orders Dismissing an Application for Judicial Review in a Migration Matter / Notice of Objection to Competency; Proceeding Dismissed

Legal Issues

  1. 1 ['Whether the Federal Court had jurisdiction to hear an appeal from a Federal Circuit Court refusal to extend time under s 477(2) of the Migration Act 1958 (Cth).' "Whether the proceeding commenced by notice of appeal could and should be treated as an application for judicial review invoking the Court's original jurisdiction." 'Whether the notice of appeal identified jurisdictional error affecting the Federal Circuit Court judgment.']

Ratio Decidendi

The proceeding was incompetent because it purported to appeal from a Federal Circuit Court refusal to extend time under s 477(2) of the Migration Act 1958 (Cth), and s 476A(3)(a) prevents such an appeal to the Federal Court. Although judicial review in the Court's original jurisdiction may be available, it was not appropriate to treat the notice of appeal as such an application because the grounds were stated at a wide level of generality and did not identify the alleged jurisdictional error with sufficient precision.

Court Disposition

Proceeding commenced by notice of appeal dismissed as incompetent.

Orders

  • ['The period specified in r 36.72(1) of the Federal Court Rules 2011 (Cth) be extended to 7 November 2018.' 'The proceeding commenced by Notice of Appeal on 28 May 2018 is dismissed.' 'The named appellant is to pay the costs of the first respondent as agreed or otherwise assessed.']