BQD17 v Minister for Home Affairs [2018] FCA 1447

BQD17 v Minister for Home Affairs [2018] FCA 1447

Although the applicant had not used the correct form, he had in substance provided an affidavit explaining the delay and proposed grounds of appeal, so the application was not incompetent. However, the proposed appeal lacked sufficient merit. The first proposed ground was not a ground of appeal, and the second did not show appellable error in the primary judge's discretionary refusal of an adjournment. It was open to the primary judge to treat the medical certificate as inadequate because it did not identify the medical condition or address whether the applicant could travel to court and participate in the hearing. In the circumstances it was not in the interests of justice to grant an...

Jurisdiction
Australia
Judgment Date
21 September 2018
Procedural Posture
Migration Application for Extension of Time Within Which to Seek Leave to Appeal From an Interlocutory Decision / Application for Extension of Time to Seek Leave to Appeal From a Federal Circuit Court Decision Refusing an Adjournment and Dismissing Judicial Review Proceedings
Outcome
Application for extension of time dismissed with costs.
Legal Topics
['extension of Time' 'leave to Appeal' 'interlocutory Decision' 'competency of Application' 'adjournment' 'default of Appearance' 'protection Visa']
['migration' 'administrative Law' 'civil Procedure'] ['extension of Time' 'leave to Appeal' 'interlocutory Decision' 'competency of Application' 'adjournment' 'default of Appearance' 'protection Visa']

Case Brief

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Procedural Posture

Migration Application for Extension of Time Within Which to Seek Leave to Appeal From an Interlocutory Decision / Application for Extension of Time to Seek Leave to Appeal From a Federal Circuit Court Decision Refusing an Adjournment and Dismissing Judicial Review Proceedings

Legal Issues

  1. 1 ['Whether the application for an extension of time to seek leave to appeal was incompetent because no proper application for leave to appeal had been filed and the correct form was not used.' "Whether an extension of time should be granted to seek leave to appeal from the Federal Circuit Court's interlocutory decision." "Whether there was sufficient doubt about the correctness of the primary judge's refusal to grant an adjournment on the basis of the applicant's medical certificate." 'Whether the proposed appeal had sufficient merit to warrant leave to appeal.']

Ratio Decidendi

Although the applicant had not used the correct form, he had in substance provided an affidavit explaining the delay and proposed grounds of appeal, so the application was not incompetent. However, the proposed appeal lacked sufficient merit. The first proposed ground was not a ground of appeal, and the second did not show appellable error in the primary judge's discretionary refusal of an adjournment. It was open to the primary judge to treat the medical certificate as inadequate because it did not identify the medical condition or address whether the applicant could travel to court and participate in the hearing. In the circumstances it was not in the interests of justice to grant an...

Court Disposition

Application for extension of time dismissed with costs.

Orders

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