AVH17 v Minister for Immigration and Border Protection [2019] FCA 122

AVH17 v Minister for Immigration and Border Protection [2019] FCA 122

The applicant's proposed new ground—that the Immigration Assessment Authority constructively failed to consider a claim of a real risk of harm from general criminal violence—was neither expressed nor raised inferentially in the material before the Authority. The Authority did not fall into a constructive refusal to exercise its statutory power, and the proposed new ground has no prospect of success. Given this, and the applicant's unsatisfactory explanation for delay, the application for extension of time and leave is refused.

Parties
Applicant: AVH17; First Respondent: Minister for Immigration and Border Protection; Second Respondent: Immigration Assessment Authority
Jurisdiction
Australia
Judgment Date
13 February 2019
Procedural Posture
Application to Extend Time for Appeal in Migration Matter / Ruling on Application for Extension of Time and Leave to Raise New Ground of Appeal
Outcome
Application for extension of time dismissed; costs awarded to first respondent.
Legal Topics
Extension of Time for Appeal, Leave to Raise New Grounds on Appeal, Jurisdictional Error, Judicial Review, Migration Protection Visas
Administrative Law Migration Law Extension of Time for Appeal Leave to Raise New Grounds on Appeal Jurisdictional Error Judicial Review Migration Protection Visas

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Parties

AVH17

Applicant

Minister for Immigration and Border Protection

First Respondent

Immigration Assessment Authority

Second Respondent

Procedural Posture

Application to Extend Time for Appeal in Migration Matter / Ruling on Application for Extension of Time and Leave to Raise New Ground of Appeal

Legal Issues

  1. 1 Should an extension of time be granted to appeal the orders of the Federal Circuit Court?
  2. 2 Should leave be granted to raise a new ground of appeal not agitated below?
  3. 3 Did the Immigration Assessment Authority fail to deal with a claim amounting to jurisdictional error?

Ratio Decidendi

The applicant's proposed new ground—that the Immigration Assessment Authority constructively failed to consider a claim of a real risk of harm from general criminal violence—was neither expressed nor raised inferentially in the material before the Authority. The Authority did not fall into a constructive refusal to exercise its statutory power, and the proposed new ground has no prospect of success. Given this, and the applicant's unsatisfactory explanation for delay, the application for extension of time and leave is refused.

Court Disposition

Application for extension of time dismissed; costs awarded to first respondent.

Orders

  • The application for an extension of time filed on 14 November 2018 is dismissed.
  • The applicant pay the first respondent's costs of and incidental to the application.