Brar v Minister for Immigration and Border Protection [2016] FCA 985

Procedural Posture

Migration Application for an Extension of Time in Which to Seek Leave to Appeal / Application for an Extension of Time to Seek Leave to Appeal From the Federal Circuit Court of Australia

Legal Issues

1. 1 ['Whether an extension of time should be granted to seek leave to appeal the Federal Circuit Court decision.' 'Whether the proposed grounds of appeal had reasonable or arguable prospects of success.' 'Whether the Certificate IV in Business Management satisfied the Australian study requirement as a degree, diploma or trade qualification within the relevant six month period.' 'Whether the Federal Circuit Court erred by refusing to read the definition of trade qualification as including Major Group 3 as well as Major Group 4.' 'Whether a new constitutional or validity challenge to the Regulations should be permitted on appeal.']

Ratio Decidendi

The application for an extension of time was dismissed because, although the application for leave to appeal was only one day late, none of the proposed grounds of appeal had arguable prospects of success. The Certificate IV in Business Management was not a degree, diploma or trade qualification within the applicable Regulations, the Federal Circuit Court correctly refused to rewrite the regulation by reference to later amendments, satisfaction of item 1136(4) did not satisfy the separate Australian study requirement in reg 886.211(2)(a), and the new validity ground had not been raised below, was unsupported by submissions, and leave to rely on it was refused.

Court Disposition

Application for an extension of time in which to seek leave to appeal dismissed.

Orders

• ['The application for an extension of time in which to seek leave to appeal the decision of the Federal Circuit Court of Australia be dismissed.' "The Applicants pay the First Respondent's costs of the application, such costs to be taxed in default of agreement."]