ABX15 v Minister for Immigration and Border Protection [2016] FCA 855

ABX15 v Minister for Immigration and Border Protection [2016] FCA 855

The proposed appeal had no substance because the Tribunal had found as a fact that the Applicant was not a genuine Christian, s 116 of the Constitution constrains the making of Commonwealth laws rather than the administration of laws, and s 91R(3) of the Migration Act 1958 (Cth) was not a law falling within s 116 or a law authorising administrative conduct contrary to s 116. The Tribunal was entitled to test the genuineness of the Applicant's claimed Christianity. As the only basis for an extension of time failed, the extension of time was refused and the proceeding dismissed.

Jurisdiction
Australia
Judgment Date
29 July 2016
Procedural Posture
Migration Judicial Review; Application for Extension of Time to Appeal Decisions of the Federal Circuit Court of Australia / Federal Court Application for Extension of Time Within Which to Appeal, and Proceeding Otherwise Before Flick J
Outcome
Application for an extension of time dismissed; proceeding otherwise dismissed; Applicant ordered to pay the First Respondent's costs.
Legal Topics
['freedom of Religion Under S 116 of the Constitution' 'protection Visa' 'refugee Status Based on Religion' 'judicial Review' 'extension of Time to Appeal' 'scope of Administrative Inquiry Into Claimed Religious Conversion']
['constitutional Law' 'migration Law' 'administrative Law'] ['freedom of Religion Under S 116 of the Constitution' 'protection Visa' 'refugee Status Based on Religion' 'judicial Review' 'extension of Time to Appeal' 'scope of Administrative Inquiry Into Claimed Religious Conversion']

Case Brief

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Procedural Posture

Migration Judicial Review; Application for Extension of Time to Appeal Decisions of the Federal Circuit Court of Australia / Federal Court Application for Extension of Time Within Which to Appeal, and Proceeding Otherwise Before Flick J

Legal Issues

  1. 1 ['Whether the Applicant should be granted an extension of time to appeal the Federal Circuit Court decisions.' "Whether s 116 of the Constitution prohibited the Tribunal from testing the genuineness of the Applicant's claimed conversion to Christianity." 'Whether s 116 applies to the administration of a law or only constrains the making of Commonwealth laws.' 'Whether s 91R(3) of the Migration Act 1958 (Cth) was invalid or administered contrary to s 116 of the Constitution.']

Ratio Decidendi

The proposed appeal had no substance because the Tribunal had found as a fact that the Applicant was not a genuine Christian, s 116 of the Constitution constrains the making of Commonwealth laws rather than the administration of laws, and s 91R(3) of the Migration Act 1958 (Cth) was not a law falling within s 116 or a law authorising administrative conduct contrary to s 116. The Tribunal was entitled to test the genuineness of the Applicant's claimed Christianity. As the only basis for an extension of time failed, the extension of time was refused and the proceeding dismissed.

Court Disposition

Application for an extension of time dismissed; proceeding otherwise dismissed; Applicant ordered to pay the First Respondent's costs.

Orders

  • ['The Application for an extension of time is dismissed.' 'The proceeding is otherwise dismissed.' 'The Applicant is to pay the costs of the First Respondent.']