BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870

BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870

The extension of time was refused because the 165 day delay was significant and not adequately explained, and because the sole proposed appeal ground was a bare and unmeritorious assertion. The ground had not been raised before the primary judge, the primary judge could not be found to have erred on a ground not raised, and it was not in the interests of justice to grant an extension to permit the applicant to argue the new ground for the first time. The Authority identified and applied the correct statutory test under s 36(2)(aa) of the Migration Act 1958 (Cth), including by relying on its anterior factual findings made in assessing the refugee criterion.

Jurisdiction
Australia
Judgment Date
26 July 2022
Procedural Posture
Migration Application for Extension of Time Within Which to Appeal / Federal Court Application for Extension of Time to Appeal From Dismissal of Federal Circuit Court Judicial Review Proceedings
Outcome
Application for extension of time dismissed with costs.
Legal Topics
['extension of Time to Appeal' 'safe Haven Enterprise Visa (subclass 790)' 'complementary Protection' 'judicial Review' 'jurisdictional Error' 'new Ground on Appeal']
['migration' 'administrative Law'] ['extension of Time to Appeal' 'safe Haven Enterprise Visa (subclass 790)' 'complementary Protection' 'judicial Review' 'jurisdictional Error' 'new Ground on Appeal']

Case Brief

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Procedural Posture

Migration Application for Extension of Time Within Which to Appeal / Federal Court Application for Extension of Time to Appeal From Dismissal of Federal Circuit Court Judicial Review Proceedings

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) to appeal from the Federal Circuit Court decision.' 'Whether the applicant gave an acceptable explanation for the 165 day delay in seeking to appeal.' 'Whether the proposed ground that the Immigration Assessment Authority failed to apply the correct test under s 36(2)(aa) of the Migration Act 1958 (Cth) had sufficient merit.' 'Whether leave should be granted to raise for the first time on appeal a ground not advanced before the primary judge.']

Ratio Decidendi

The extension of time was refused because the 165 day delay was significant and not adequately explained, and because the sole proposed appeal ground was a bare and unmeritorious assertion. The ground had not been raised before the primary judge, the primary judge could not be found to have erred on a ground not raised, and it was not in the interests of justice to grant an extension to permit the applicant to argue the new ground for the first time. The Authority identified and applied the correct statutory test under s 36(2)(aa) of the Migration Act 1958 (Cth), including by relying on its anterior factual findings made in assessing the refugee criterion.

Court Disposition

Application for extension of time dismissed with costs.

Orders

  • ['The application for an extension of time in which to appeal be dismissed.' "The applicant pay the first respondent's costs of the proceedings to be assessed if not agreed."]