DEM16 v Minister for Immigration and Border Protection [2017] FCA 1115

DEM16 v Minister for Immigration and Border Protection [2017] FCA 1115

The appeal was dismissed because the Federal Circuit Court was entitled to treat the second judicial review proceeding as an abuse of process and, alternatively, the proposed judicial review lacked sufficient merit to warrant an extension of time. The Tribunal's adverse credibility assessment was rationally reasoned by reference to inconsistencies and did not disclose jurisdictional error. The appellant had had many months to prepare or seek representation, so no adjournment was warranted, and costs should follow the event.

Jurisdiction
Australia
Judgment Date
04 August 2017
Procedural Posture
Migration Appeal / Application Concerning Dismissal of Federal Circuit Court Judicial Review Proceeding / Appeal or Purported Appeal From Interlocutory Federal Circuit Court Orders; Application for Adjournment Refused and Appeal Dismissed
Outcome
Application for adjournment refused; appeal dismissed; appellant ordered to pay the first respondent's costs.
Legal Topics
['protection Visa' 'judicial Review of Administrative Appeals Tribunal Decision' 'extension of Time' 'abuse of Process' 'interlocutory Judgment' 'leave to Appeal' 'credibility Findings' 'costs']
['migration' 'administrative Law' 'appeals' 'civil Procedure'] ['protection Visa' 'judicial Review of Administrative Appeals Tribunal Decision' 'extension of Time' 'abuse of Process' 'interlocutory Judgment' 'leave to Appeal' 'credibility Findings' 'costs']

Case Brief

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Procedural Posture

Migration Appeal / Application Concerning Dismissal of Federal Circuit Court Judicial Review Proceeding / Appeal or Purported Appeal From Interlocutory Federal Circuit Court Orders; Application for Adjournment Refused and Appeal Dismissed

Legal Issues

  1. 1 ['Whether the appellant should be granted an adjournment to obtain legal representation.' "Whether the appeal was competent or required leave because the Federal Circuit Court's dismissal was an interlocutory judgment." 'Whether the second Federal Circuit Court judicial review application was an abuse of process after an earlier discontinued application concerning the same Tribunal decision.' "Whether the proposed appeal or judicial review application had reasonable prospects of success, including whether the Tribunal's credibility assessment disclosed jurisdictional error." "Whether costs should follow the event despite the appellant's asserted inability to pay."]

Ratio Decidendi

The appeal was dismissed because the Federal Circuit Court was entitled to treat the second judicial review proceeding as an abuse of process and, alternatively, the proposed judicial review lacked sufficient merit to warrant an extension of time. The Tribunal's adverse credibility assessment was rationally reasoned by reference to inconsistencies and did not disclose jurisdictional error. The appellant had had many months to prepare or seek representation, so no adjournment was warranted, and costs should follow the event.

Court Disposition

Application for adjournment refused; appeal dismissed; appellant ordered to pay the first respondent's costs.

Orders

  • ["The appellant's application for an adjournment made orally on this day is refused." 'The appeal be dismissed.' "The appellant pay the first respondent's costs of and incidental to the appeal, to be taxed, if not agreed."]