BHG16 v Minister for Immigration and Border Protection [2018] FCA 588

BHG16 v Minister for Immigration and Border Protection [2018] FCA 588

Leave to appeal was not warranted because none of the proposed grounds disclosed arguable error in the primary judge's dismissal of the reinstatement application. The applicant had not shown arguable error concerning the explanation for his non-appearance, the Tribunal's credibility findings, the alleged irrelevant consideration, or the third country protection grounds. Because the proposed appeal lacked sufficient merit and the primary judge's decision was not attended with sufficient doubt, the application for extension of time and leave to appeal was dismissed.

Jurisdiction
Australia
Judgment Date
01 May 2018
Procedural Posture
Migration Application for Extension of Time and Leave to Appeal From Orders of the Federal Circuit Court of Australia Concerning a Protection Visa Judicial Review Proceeding / Application for Extension of Time and Leave to Appeal
Outcome
Application for an extension of time and leave to appeal dismissed; applicant ordered to pay the first respondent's costs of the application, to be taxed if not agreed.
Legal Topics
['protection Visa' 'complementary Protection' 'extension of Time' 'leave to Appeal' 'jurisdictional Error' 'reinstatement of Proceeding' 'failure to Appear' 'third Country Protection' 'credibility Findings']
['migration' 'administrative Law'] ['protection Visa' 'complementary Protection' 'extension of Time' 'leave to Appeal' 'jurisdictional Error' 'reinstatement of Proceeding' 'failure to Appear' 'third Country Protection' 'credibility Findings']

Case Brief

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Procedural Posture

Migration Application for Extension of Time and Leave to Appeal From Orders of the Federal Circuit Court of Australia Concerning a Protection Visa Judicial Review Proceeding / Application for Extension of Time and Leave to Appeal

Legal Issues

  1. 1 ['Whether time should be extended for the applicant to apply for leave to appeal from interlocutory orders of the Federal Circuit Court.' "Whether leave to appeal should be granted from the Federal Circuit Court's dismissal of the applicant's application for reinstatement." 'Whether the primary judge arguably erred in finding that the applicant had not provided an adequate explanation for failing to appear at the Federal Circuit Court hearing on 2 August 2017.' 'Whether the primary judge arguably erred in rejecting alleged jurisdictional error based on adverse credibility findings said to have been made without evidence.' "Whether the primary judge arguably erred in rejecting alleged jurisdictional error based on irrelevant considerations concerning an adverse inference from the applicant's lack of response to an interview invitation." 'Whether grounds concerning third country protection and a possible right to enter and reside in Nepal disclosed arguable error.']

Ratio Decidendi

Leave to appeal was not warranted because none of the proposed grounds disclosed arguable error in the primary judge's dismissal of the reinstatement application. The applicant had not shown arguable error concerning the explanation for his non-appearance, the Tribunal's credibility findings, the alleged irrelevant consideration, or the third country protection grounds. Because the proposed appeal lacked sufficient merit and the primary judge's decision was not attended with sufficient doubt, the application for extension of time and leave to appeal was dismissed.

Court Disposition

Application for an extension of time and leave to appeal dismissed; applicant ordered to pay the first respondent's costs of the application, to be taxed if not agreed.

Orders

  • ['The application for an extension of time and leave to appeal be dismissed.' "The applicant pay the first respondent's costs of the application, to be taxed if not agreed."]