Ghimire v Minister for Immigration & Border Protection [2014] FCA 899

Ghimire v Minister for Immigration & Border Protection [2014] FCA 899

The extension of time was refused because the proposed appeal lacked merit. The Tribunal had taken the applicant's late response into account, its findings about the applicant's enrolment history and genuine temporary entrant status were open on the evidence, Wednesbury unreasonableness did not arise, there was no sufficient doubt about the primary judge's decision to dismiss the judicial review application, and the applicant had not shown that substantial injustice would result if leave were refused.

Jurisdiction
Australia
Judgment Date
22 August 2014
Procedural Posture
Migration; Application for Extension of Time and Leave to Appeal / Application in the Federal Court for an Extension of Time Within Which to Seek Leave to Appeal and for Leave to Appeal From Orders of the Federal Circuit Court Dismissing an Application for Judicial Review
Outcome
Application for an extension of time within which to apply for leave to appeal dismissed with costs.
Legal Topics
['student Visa Refusal' 'genuine Temporary Entrant Criterion' 'migration Review Tribunal Review' 'extension of Time to Seek Leave to Appeal' 'leave to Appeal' 'wednesbury Unreasonableness' 'summary Dismissal Under R 44.12 of the Federal Circuit Court Rules 2001 (cth)']
['migration Law' 'administrative Law' 'civil Procedure'] ['student Visa Refusal' 'genuine Temporary Entrant Criterion' 'migration Review Tribunal Review' 'extension of Time to Seek Leave to Appeal' 'leave to Appeal' 'wednesbury Unreasonableness' 'summary Dismissal Under R 44.12 of the Federal Circuit Court Rules 2001 (cth)']

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Procedural Posture

Migration; Application for Extension of Time and Leave to Appeal / Application in the Federal Court for an Extension of Time Within Which to Seek Leave to Appeal and for Leave to Appeal From Orders of the Federal Circuit Court Dismissing an Application for Judicial Review

Legal Issues

  1. 1 ['Whether the applicant should receive an extension of time within which to apply for leave to appeal.' 'Whether the proposed appeal from the Federal Circuit Court had sufficient prospects of success.' "Whether the Tribunal's findings about the applicant's enrolment history and genuine temporary entrant status were affected by Wednesbury unreasonableness or jurisdictional error." 'Whether substantial injustice would result if leave to appeal were refused.' 'Whether the Federal Circuit Court could dismiss the judicial review application under r 44.12(1)(a) before a Court Book was filed and served.']

Ratio Decidendi

The extension of time was refused because the proposed appeal lacked merit. The Tribunal had taken the applicant's late response into account, its findings about the applicant's enrolment history and genuine temporary entrant status were open on the evidence, Wednesbury unreasonableness did not arise, there was no sufficient doubt about the primary judge's decision to dismiss the judicial review application, and the applicant had not shown that substantial injustice would result if leave were refused.

Court Disposition

Application for an extension of time within which to apply for leave to appeal dismissed with costs.

Orders

  • ['The application for an extension of time within which to apply for leave to appeal be dismissed.' 'The applicant pay the costs of the first respondent, fixed in the sum of $6,439.']