ELS17 v Minister for Immigration and Border Protection [2020] FCA 94

ELS17 v Minister for Immigration and Border Protection [2020] FCA 94

The discretion to extend time under r 36.05 was not enlivened in the applicants' favour because the delay was extensive, there was no acceptable explanation for failing to appeal within time, the proposed grounds were vague, unparticularised and without merit, and granting an extension would undermine the migration review framework. In any event, the application was also liable to be dismissed because the applicants failed to appear at the hearing.

Jurisdiction
Australia
Judgment Date
13 February 2020
Procedural Posture
Migration Appeal; Application for Extension of Time in Which to Appeal / Application in the Federal Court of Australia for an Extension of Time to Appeal a Federal Circuit Court Decision Dismissing Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of Protection Visas
Outcome
Application dismissed.
Legal Topics
['extension of Time' 'protection Visas' 'jurisdictional Error' 'procedural Fairness' 'non Appearance' 'merits of Proposed Appeal']
['migration Law' 'administrative Law'] ['extension of Time' 'protection Visas' 'jurisdictional Error' 'procedural Fairness' 'non Appearance' 'merits of Proposed Appeal']

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Procedural Posture

Migration Appeal; Application for Extension of Time in Which to Appeal / Application in the Federal Court of Australia for an Extension of Time to Appeal a Federal Circuit Court Decision Dismissing Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of Protection Visas

Legal Issues

  1. 1 ['Whether the applicants should be granted an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) to appeal the Federal Circuit Court decision.' 'Whether the lengthy delay in filing the application for an extension of time was adequately explained.' "Whether the proposed grounds of appeal had sufficient merit, including alleged jurisdictional error by the Tribunal and alleged unfair handling of the applicants' case." 'Whether the application should be dismissed for non-appearance under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).']

Ratio Decidendi

The discretion to extend time under r 36.05 was not enlivened in the applicants' favour because the delay was extensive, there was no acceptable explanation for failing to appeal within time, the proposed grounds were vague, unparticularised and without merit, and granting an extension would undermine the migration review framework. In any event, the application was also liable to be dismissed because the applicants failed to appear at the hearing.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.' "The applicants are to pay the first respondent's costs of the application."]