BCW16 v Minister for Immigration and Border Protection [2021] FCA 1086

BCW16 v Minister for Immigration and Border Protection [2021] FCA 1086

Although the delay was very short and acceptably explained, the proposed appeal ground had insufficient merit to justify an extension of time. The ITOA assessor did consider, in the context of the complementary protection criterion, the applicant's claim that he faced a real risk of significant harm due to having departed Sri Lanka illegally. The assessor considered a comparable claim in detail under the refugee criterion and adopted those findings in the complementary protection analysis; because the factual basis of the claims was essentially the same, that approach was open to the assessor.

Jurisdiction
Australia
Judgment Date
10 September 2021
Procedural Posture
Migration Application for Extension of Time to File a Notice of Appeal From a Judgment of the Federal Circuit Court of Australia / Application for Extension of Time to Appeal
Outcome
Application for extension of time dismissed; applicant ordered to pay the first respondent's costs of and incidental to the application, to be fixed by way of a lump sum.
Legal Topics
['protection Visa' 'international Treaties Obligations Assessment' 'non Refoulement Obligations' 'complementary Protection' 'jurisdictional Error' 'extension of Time to Appeal']
['migration Law' 'administrative Law'] ['protection Visa' 'international Treaties Obligations Assessment' 'non Refoulement Obligations' 'complementary Protection' 'jurisdictional Error' 'extension of Time to Appeal']

Case Brief

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Procedural Posture

Migration Application for Extension of Time to File a Notice of Appeal From a Judgment of the Federal Circuit Court of Australia / Application for Extension of Time to Appeal

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time to file a notice of appeal from the Federal Circuit Court judgment.' "Whether the proposed appeal ground had sufficient merit, namely whether the ITOA assessor failed to consider the applicant's claim that, if returned to Sri Lanka, he faced a real risk of significant harm under s 36(2)(aa) of the Migration Act 1958 (Cth) due to having departed Sri Lanka illegally."]

Ratio Decidendi

Although the delay was very short and acceptably explained, the proposed appeal ground had insufficient merit to justify an extension of time. The ITOA assessor did consider, in the context of the complementary protection criterion, the applicant's claim that he faced a real risk of significant harm due to having departed Sri Lanka illegally. The assessor considered a comparable claim in detail under the refugee criterion and adopted those findings in the complementary protection analysis; because the factual basis of the claims was essentially the same, that approach was open to the assessor.

Court Disposition

Application for extension of time dismissed; applicant ordered to pay the first respondent's costs of and incidental to the application, to be fixed by way of a lump sum.

Orders

  • ['The application for an extension of time (filed on 12 November 2020) to file a notice of appeal be dismissed.' "The applicant pay the first respondent's costs of and incidental to the application, to be fixed by way of a lump sum." "Within 14 days, the parties file any agreed proposed minute of orders fixing a...