AJB16 v Minister for Immigration and Border Protection [2017] FCA 544

AJB16 v Minister for Immigration and Border Protection [2017] FCA 544

Although the delay was brief and caused little prejudice, the proposed appeal was not reasonably arguable. There was no evidence that any certificate under s 438 or s 375A of the Migration Act 1958 (Cth) was involved, the Tribunal's credibility reasoning and relocation findings disclosed no arguable jurisdictional error, the allegation that the Tribunal member was dismissive was unsupported, the alleged clearly erroneous fact was unparticularised, and the s 424A complaint identified no information that the Tribunal was required to disclose. The application for extension of time was therefore refused.

Jurisdiction
Australia
Judgment Date
12 May 2017
Procedural Posture
Migration Application for Extension of Time to Appeal / Application for Extension of Time to Appeal From Orders and Judgment of the Federal Circuit Court
Outcome
Application for extension of time dismissed with costs.
Legal Topics
['protection Visa' 'extension of Time to Appeal' 'jurisdictional Error' 'procedural Fairness' 'credibility Findings' 'relocation Within Nepal' 'migration Act Procedural Obligations']
['migration' 'administrative Law'] ['protection Visa' 'extension of Time to Appeal' 'jurisdictional Error' 'procedural Fairness' 'credibility Findings' 'relocation Within Nepal' 'migration Act Procedural Obligations']

Case Brief

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Procedural Posture

Migration Application for Extension of Time to Appeal / Application for Extension of Time to Appeal From Orders and Judgment of the Federal Circuit Court

Legal Issues

  1. 1 ['Whether time should be extended for the applicant to appeal from the Federal Circuit Court decision.' 'Whether the proposed appeal had any arguable merit.' 'Whether the Tribunal denied procedural fairness by failing to apply MZAFZ v Minister for Immigration and Border Protection or Minister for Immigration and Border Protection v Singh.' "Whether the Tribunal committed jurisdictional error in its treatment of the applicant's claim to be homosexual and his fear of harm in Nepal." 'Whether the Tribunal breached s 424A of the Migration Act 1958 (Cth).']

Ratio Decidendi

Although the delay was brief and caused little prejudice, the proposed appeal was not reasonably arguable. There was no evidence that any certificate under s 438 or s 375A of the Migration Act 1958 (Cth) was involved, the Tribunal's credibility reasoning and relocation findings disclosed no arguable jurisdictional error, the allegation that the Tribunal member was dismissive was unsupported, the alleged clearly erroneous fact was unparticularised, and the s 424A complaint identified no information that the Tribunal was required to disclose. The application for extension of time was therefore refused.

Court Disposition

Application for extension of time dismissed with costs.

Orders

  • ['The application for extension of time filed on 22 November 2016 be dismissed.' 'The applicant pay the costs of the first respondent.']