ARS15 v Minister for Immigration and Border Protection [2018] FCA 1673

ARS15 v Minister for Immigration and Border Protection [2018] FCA 1673

Although the delay was short, there was no prejudice to the Minister, and the applicant had provided a partial explanation for the delay, the proposed appeal had insufficient prospects of success because the Tribunal had considered the claimed significance of the applicant's leg scarring and rejected the applicant's claims. The proposed ground had also not been argued before the Federal Circuit Court and would require leave. The discretion to extend time was therefore not exercised.

Jurisdiction
Australia
Judgment Date
05 November 2018
Procedural Posture
Migration Application for Extension of Time to Appeal From a Federal Circuit Court Decision Dismissing Judicial Review of an Administrative Appeals Tribunal Decision / Application Under R 36.05 of the Federal Court Rules 2011 (cth) for an Extension of Time
Outcome
Application dismissed with costs.
Legal Topics
['extension of Time to Appeal' 'judicial Review' 'jurisdictional Error' 'protection Visa' 'administrative Appeals Tribunal' 'prospects of Success']
['migration' 'administrative Law' 'appellate Procedure'] ['extension of Time to Appeal' 'judicial Review' 'jurisdictional Error' 'protection Visa' 'administrative Appeals Tribunal' 'prospects of Success']

Case Brief

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Procedural Posture

Migration Application for Extension of Time to Appeal From a Federal Circuit Court Decision Dismissing Judicial Review of an Administrative Appeals Tribunal Decision / Application Under R 36.05 of the Federal Court Rules 2011 (cth) for an Extension of Time

Legal Issues

  1. 1 ['Whether time should be extended to permit an appeal filed five days out of time from the Federal Circuit Court decision.' "Whether the proposed appeal had sufficient prospects of success, including whether the Tribunal failed to consider the claim that scarring to the applicant's legs may cause Sri Lankan authorities to consider him connected with the LTTE." 'Whether the applicant should have leave to raise on appeal a ground not argued before the Federal Circuit Court.']

Ratio Decidendi

Although the delay was short, there was no prejudice to the Minister, and the applicant had provided a partial explanation for the delay, the proposed appeal had insufficient prospects of success because the Tribunal had considered the claimed significance of the applicant's leg scarring and rejected the applicant's claims. The proposed ground had also not been argued before the Federal Circuit Court and would require leave. The discretion to extend time was therefore not exercised.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application is dismissed.' "The applicant pay the first respondent's costs as agreed or assessed."]