BZADJ v Minister for Immigration and Border Protection [2017] FCA 853

BZADJ v Minister for Immigration and Border Protection [2017] FCA 853

Although the extension sought was very substantial and the applicant's evidence explaining the delay was unsatisfactory, incomplete and not frank, the Court granted the extension because the Minister did not oppose the application or assert prejudice, the delay may partly have resulted from the Minister's non-disclosure of s 438 certificates and related material, refusal would cause significant detriment to the applicant who faced deportation after nearly 12 years in Australia, and proposed grounds based on Singh and MZAFZ appeared to have reasonable prospects of success.

Jurisdiction
Australia
Judgment Date
28 July 2017
Procedural Posture
Migration Application for an Extension of Time to Commence an Appeal / Application for Extension of Time Before the Federal Court of Australia
Outcome
Application granted.
Legal Topics
['extension of Time to Appeal' 'procedural Fairness' 'migration Act 1958 (cth) S 438 Certificates' 'ministerial Intervention' 'prospects of Success on Appeal']
['migration' 'administrative Law' 'federal Court Procedure'] ['extension of Time to Appeal' 'procedural Fairness' 'migration Act 1958 (cth) S 438 Certificates' 'ministerial Intervention' 'prospects of Success on Appeal']

Case Brief

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Procedural Posture

Migration Application for an Extension of Time to Commence an Appeal / Application for Extension of Time Before the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Court should extend time by just on three years and four months for the applicant to commence an appeal from the Federal Circuit Court decision.' "Whether the applicant's explanation for delay was adequate and reliable." "Whether the Minister's non-opposition and absence of asserted prejudice supported granting the extension." 'Whether the proposed appeal grounds based on non-disclosure and validity of Migration Act 1958 (Cth) s 438 certificates had reasonable prospects of success.' 'Whether refusal of the extension would cause significant detriment to the applicant facing deportation after nearly 12 years in Australia.']

Ratio Decidendi

Although the extension sought was very substantial and the applicant's evidence explaining the delay was unsatisfactory, incomplete and not frank, the Court granted the extension because the Minister did not oppose the application or assert prejudice, the delay may partly have resulted from the Minister's non-disclosure of s 438 certificates and related material, refusal would cause significant detriment to the applicant who faced deportation after nearly 12 years in Australia, and proposed grounds based on Singh and MZAFZ appeared to have reasonable prospects of success.

Court Disposition

Application granted.

Orders

  • ['The Applicant is granted leave to commence an appeal by 4 August 2017.']