BKX16 v Minister for Immigration and Border Protection [2019] FCA 991

BKX16 v Minister for Immigration and Border Protection [2019] FCA 991

The application for extension of time was dismissed because, although the delay was short and there was little prejudice to the Minister, the applicant gave no satisfactory explanation for being out of time and, critically, the proposed application for leave to appeal was not reasonably arguable. The primary judge was entitled to find no reasonable explanation for the applicant's failure to appear, no error was apparent in the Tribunal's reasons, and the Tribunal had exercised its jurisdiction by considering and rejecting the protection claims on findings open to it.

Jurisdiction
Australia
Judgment Date
26 June 2019
Procedural Posture
Application for Extension of Time and Leave to Appeal / Application Dismissed
Outcome
Application for extension of time and leave to appeal dismissed with costs.
Legal Topics
['extension of Time' 'leave to Appeal' 'protection Visa' 'judicial Review' 'jurisdictional Error' 'procedural Fairness']
['migration' 'administrative Law'] ['extension of Time' 'leave to Appeal' 'protection Visa' 'judicial Review' 'jurisdictional Error' 'procedural Fairness']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal / Application Dismissed

Legal Issues

  1. 1 ['Whether an extension of time should be granted for an application for leave to appeal filed five days out of time.' "Whether the proposed appeal from the Federal Circuit Court's refusal to set aside dismissal of the judicial review application was reasonably arguable." "Whether the primary judge erred in finding no reasonable explanation for the applicant's failure to appear at the Federal Circuit Court hearing." "Whether there was any arguable jurisdictional error or procedural fairness error in the Administrative Appeals Tribunal's decision affirming refusal of a protection visa."]

Ratio Decidendi

The application for extension of time was dismissed because, although the delay was short and there was little prejudice to the Minister, the applicant gave no satisfactory explanation for being out of time and, critically, the proposed application for leave to appeal was not reasonably arguable. The primary judge was entitled to find no reasonable explanation for the applicant's failure to appear, no error was apparent in the Tribunal's reasons, and the Tribunal had exercised its jurisdiction by considering and rejecting the protection claims on findings open to it.

Court Disposition

Application for extension of time and leave to appeal dismissed with costs.

Orders

  • ["The name of the first respondent is amended to 'Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs'." 'The application for extension of time and leave to appeal is dismissed.' "The applicant must pay the first respondent's costs of the application, to be assessed if not agreed."]