BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483

BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483

The applicant's delay in filing the application for extension of time and leave to appeal was not adequately explained by his pursuit of Ministerial intervention, and the proposed appeal had poor prospects. The primary judge took an appropriate impressionistic approach to the merits of the proposed judicial review, considered the applicant's claim concerning remand in Sri Lanka, and made no arguable error in concluding, having regard to SZTAL, that harm from prison conditions could not be considered intentional for the purposes advanced. In light of the explanation for delay, the length of delay, and the poor prospects of the proposed appeal, it was not in the interests of justice to...

Jurisdiction
Australia
Judgment Date
02 October 2018
Procedural Posture
Migration; Application for Extension of Time and Leave to Appeal / Application for Extension of Time Within Which to Seek Leave to Appeal From an Interlocutory Decision of the Federal Circuit Court of Australia
Outcome
The application for extension of time and leave to appeal was dismissed, and the applicant was ordered to pay the First Respondent's costs.
Legal Topics
['extension of Time' 'leave to Appeal' 'interlocutory Decision' 'judicial Review' 'protection Visa' 'complementary Protection' 'jurisdictional Error' 'ministerial Intervention' 'failure to Appear' 'reinstatement Application']
['migration' 'administrative Law' 'federal Appellate Procedure'] ['extension of Time' 'leave to Appeal' 'interlocutory Decision' 'judicial Review' 'protection Visa' 'complementary Protection' 'jurisdictional Error' 'ministerial Intervention' 'failure to Appear' 'reinstatement Application']

Case Brief

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Procedural Posture

Migration; Application for Extension of Time and Leave to Appeal / Application for Extension of Time Within Which to Seek Leave to Appeal From an Interlocutory Decision of the Federal Circuit Court of Australia

Legal Issues

  1. 1 ["Whether the Court should extend time for the applicant to seek leave to appeal from the Federal Circuit Court's interlocutory decision." "Whether leave to appeal should be granted from the Federal Circuit Court's refusal to set aside the dismissal of the applicant's extension of time application." 'Whether the proposed appeal had reasonable prospects of success, including as to alleged jurisdictional error concerning detention on remand in Sri Lanka and significant harm.' "Whether the applicant's delay was adequately explained by his pursuit of Ministerial intervention under s 417 of the Migration Act 1958 (Cth)."]

Ratio Decidendi

The applicant's delay in filing the application for extension of time and leave to appeal was not adequately explained by his pursuit of Ministerial intervention, and the proposed appeal had poor prospects. The primary judge took an appropriate impressionistic approach to the merits of the proposed judicial review, considered the applicant's claim concerning remand in Sri Lanka, and made no arguable error in concluding, having regard to SZTAL, that harm from prison conditions could not be considered intentional for the purposes advanced. In light of the explanation for delay, the length of delay, and the poor prospects of the proposed appeal, it was not in the interests of justice to...

Court Disposition

The application for extension of time and leave to appeal was dismissed, and the applicant was ordered to pay the First Respondent's costs.

Orders

  • ['The application for extension of time and leave to appeal be dismissed.' "The Applicant pay the First Respondent's costs."]