CAD17 v Minister for Immigration and Border Protection [2019] FCA 1343

CAD17 v Minister for Immigration and Border Protection [2019] FCA 1343

The application for extension of time was refused because, although the delay was not excessive and was partly explained by the applicant's lack of English and unfamiliarity with Federal Court practice, the proposed appeal had no prospects of success. The Tribunal dismissed the review application under s 426A because the applicant failed to appear and later confirmed the dismissal when no reinstatement was sought, so complaints about failure to consider the merits of protection claims were misconceived. The applicant was not denied procedural fairness merely because he was unrepresented in the Federal Circuit Court, and there was no basis to conclude that the primary judge denied him an...

Jurisdiction
Australia
Judgment Date
30 August 2019
Procedural Posture
Migration Application for Extension of Time to Appeal / Federal Court Application Under R 36.05 of the Federal Court Rules 2011 to Extend Time to Appeal From a Federal Circuit Court Decision Dismissing Judicial Review of an Administrative Appeals Tribunal Migration Decision
Outcome
Application for an extension of time to file a notice of appeal dismissed.
Legal Topics
['extension of Time to Appeal' 'protection Visa Refusal' 'non Appearance Before Administrative Appeals Tribunal' 'jurisdictional Error' 'section 438 Notification' 'prospects of Success']
['migration Law' 'administrative Law' 'judicial Review' 'procedural Fairness'] ['extension of Time to Appeal' 'protection Visa Refusal' 'non Appearance Before Administrative Appeals Tribunal' 'jurisdictional Error' 'section 438 Notification' 'prospects of Success']

Case Brief

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Procedural Posture

Migration Application for Extension of Time to Appeal / Federal Court Application Under R 36.05 of the Federal Court Rules 2011 to Extend Time to Appeal From a Federal Circuit Court Decision Dismissing Judicial Review of an Administrative Appeals Tribunal Migration Decision

Legal Issues

  1. 1 ['Whether the Court should extend time under r 36.05 of the Federal Court Rules 2011 to file a notice of appeal.' 'Whether the proposed appeal from the Federal Circuit Court decision had reasonable prospects of success.' "Whether the Tribunal's failure to notify the applicant of a s 438 Migration Act 1958 (Cth) notification denied procedural fairness amounting to jurisdictional error." 'Whether the applicant was denied procedural fairness because he was self-represented.' 'Whether the applicant could raise a new contention that he did not receive Tribunal hearing notices.']

Ratio Decidendi

The application for extension of time was refused because, although the delay was not excessive and was partly explained by the applicant's lack of English and unfamiliarity with Federal Court practice, the proposed appeal had no prospects of success. The Tribunal dismissed the review application under s 426A because the applicant failed to appear and later confirmed the dismissal when no reinstatement was sought, so complaints about failure to consider the merits of protection claims were misconceived. The applicant was not denied procedural fairness merely because he was unrepresented in the Federal Circuit Court, and there was no basis to conclude that the primary judge denied him an...

Court Disposition

Application for an extension of time to file a notice of appeal dismissed.

Orders

  • ['The application for an extension of time to file a notice of appeal be dismissed.' "The applicant pay the first respondent's costs in an amount of $7,241."]