BMU16 v Minister for Immigration and Border Protection [2018] FCA 880

BMU16 v Minister for Immigration and Border Protection [2018] FCA 880

Leave to appeal was refused because the proposed grounds had no reasonable prospects of success. The Tribunal lacked jurisdiction as the applicant lodged his review application years after the 28 day statutory period expired, and the Tribunal had no discretion to extend time. There was no evidence that the applicant was misled about the review process, the courts could not undertake merits review of the protection visa claims, any alleged interpreter failure could not alter the statutory notification consequence, and non-disclosure of the invalid s 438 certificates could not have affected the Tribunal's jurisdictional decision.

Jurisdiction
Australia
Judgment Date
12 June 2018
Procedural Posture
Migration; Application for Leave to Appeal From Federal Circuit Court Judicial Review Decision / Application for Leave to Appeal From Dismissal of Judicial Review Application at Show Cause Hearing
Outcome
Application for leave to appeal dismissed; costs reserved.
Legal Topics
['protection Visa Refusal' 'tribunal Jurisdiction' 'time Limit for Review Application' 'notification by Post' 'procedural Fairness' 'non Disclosure Certificates' 'leave to Appeal']
['migration Law' 'administrative Law' 'judicial Review'] ['protection Visa Refusal' 'tribunal Jurisdiction' 'time Limit for Review Application' 'notification by Post' 'procedural Fairness' 'non Disclosure Certificates' 'leave to Appeal']

Case Brief

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Procedural Posture

Migration; Application for Leave to Appeal From Federal Circuit Court Judicial Review Decision / Application for Leave to Appeal From Dismissal of Judicial Review Application at Show Cause Hearing

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the Federal Circuit Court decision dismissing the judicial review application.' 'Whether the Administrative Appeals Tribunal lacked jurisdiction because the applicant applied for review outside the prescribed 28 day period.' 'Whether there was evidence that an immigration officer or the Department misled the applicant about review fees or review rights.' 'Whether alleged failure by the Federal Circuit Court interpreter could have affected the outcome.' 'Whether non-disclosure of invalid s 438(1)(a) certificates gave rise to an arguable denial of procedural fairness.']

Ratio Decidendi

Leave to appeal was refused because the proposed grounds had no reasonable prospects of success. The Tribunal lacked jurisdiction as the applicant lodged his review application years after the 28 day statutory period expired, and the Tribunal had no discretion to extend time. There was no evidence that the applicant was misled about the review process, the courts could not undertake merits review of the protection visa claims, any alleged interpreter failure could not alter the statutory notification consequence, and non-disclosure of the invalid s 438 certificates could not have affected the Tribunal's jurisdictional decision.

Court Disposition

Application for leave to appeal dismissed; costs reserved.

Orders

  • ['The application for leave to appeal is dismissed.' 'Costs are reserved.']