BDC17 v Minister for Immigration and Border Protection [2018] FCA 1899

BDC17 v Minister for Immigration and Border Protection [2018] FCA 1899

Although the delay in seeking leave to appeal was 22 days, was explained by unchallenged evidence of illness, and caused no asserted prejudice, the proposed appeal lacked sufficient merit. The first proposed ground merely asserted that the matter involved a question of law and did not raise a ground of appeal. The second asserted jurisdictional error without particulars and, when assessed against the Federal Circuit Court's reasons, was not sufficiently arguable. The applicant's submissions sought impermissibly to have the Court reconsider the visa merits, receive fresh evidence, and revisit IAA credit findings. It was therefore not in the interests of justice to grant an extension of...

Jurisdiction
Australia
Judgment Date
30 November 2018
Procedural Posture
Migration Appeal; Application for Extension of Time Within Which to Appeal From a Decision of the Federal Circuit Court of Australia / Application to Set Aside Orders Made When the Applicant Failed to Appear and Application for Leave to Appeal Out of Time
Outcome
Application dismissed with costs.
Legal Topics
['safe Haven Enterprise Visa' 'extension of Time to Appeal' 'jurisdictional Error' 'failure to Appear' 'immigration Assessment Authority' 'fresh Evidence on Appeal']
['migration Law' 'administrative Law' 'federal Court Procedure'] ['safe Haven Enterprise Visa' 'extension of Time to Appeal' 'jurisdictional Error' 'failure to Appear' 'immigration Assessment Authority' 'fresh Evidence on Appeal']

Case Brief

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Procedural Posture

Migration Appeal; Application for Extension of Time Within Which to Appeal From a Decision of the Federal Circuit Court of Australia / Application to Set Aside Orders Made When the Applicant Failed to Appear and Application for Leave to Appeal Out of Time

Legal Issues

  1. 1 ["Whether orders dismissing the proceedings following the applicant's non-appearance should be set aside under FCR r 36.75(2)." 'Whether it was in the interests of justice to extend time for the applicant to appeal from the Federal Circuit Court decision.' 'Whether the proposed appeal had sufficient merit or reasonable prospects of success.' "Whether the Court could receive fresh evidence or reconsider the factual merits of the applicant's visa application and the IAA's credit findings."]

Ratio Decidendi

Although the delay in seeking leave to appeal was 22 days, was explained by unchallenged evidence of illness, and caused no asserted prejudice, the proposed appeal lacked sufficient merit. The first proposed ground merely asserted that the matter involved a question of law and did not raise a ground of appeal. The second asserted jurisdictional error without particulars and, when assessed against the Federal Circuit Court's reasons, was not sufficiently arguable. The applicant's submissions sought impermissibly to have the Court reconsider the visa merits, receive fresh evidence, and revisit IAA credit findings. It was therefore not in the interests of justice to grant an extension of...

Court Disposition

Application dismissed with costs.

Orders

  • ['The application is dismissed.' "The Applicant pay the First Respondent's costs."]