CLA15 v Minister for Home Affairs [2019] FCA 262

CLA15 v Minister for Home Affairs [2019] FCA 262

Because there was no personal procedural decision by the Minister to consider whether to exercise the s 48B power, the Department's handling of the applicant's request and finalisation without referral to the Minister had no statutory basis, was not a decision under the Migration Act 1958 (Cth) or a privative clause decision, and did not attract any obligation to afford procedural fairness. The proposed appeal therefore had no reasonable prospects of success, so the extension of time and leave to appeal were refused.

Jurisdiction
Australia
Judgment Date
28 February 2019
Procedural Posture
Migration Judicial Review Appeal / Application for Extension of Time in Which to File an Application for Leave to Appeal and for Any Appeal From an Order of the Federal Circuit Court Dismissing an Application for Judicial Review
Outcome
Application refused and dismissed with costs.
Legal Topics
['protection Visa Refusal' 'ministerial Intervention Under S 48 B of the Migration Act 1958 (cth)' 'non Compellable Ministerial Powers' 'procedural Fairness' 'privative Clause Decision' 'jurisdiction' 'extension of Time and Leave to Appeal']
['migration Law' 'administrative Law'] ['protection Visa Refusal' 'ministerial Intervention Under S 48 B of the Migration Act 1958 (cth)' 'non Compellable Ministerial Powers' 'procedural Fairness' 'privative Clause Decision' 'jurisdiction' 'extension of Time and Leave to Appeal']

Case Brief

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Procedural Posture

Migration Judicial Review Appeal / Application for Extension of Time in Which to File an Application for Leave to Appeal and for Any Appeal From an Order of the Federal Circuit Court Dismissing an Application for Judicial Review

Legal Issues

  1. 1 ["Whether the Department's letter finalising the applicant's s 48B request without referral to the Minister was a decision reviewable by the Federal Circuit Court." 'Whether the Departmental process attracted an obligation to afford procedural fairness.' 'Whether the proposed appeal had sufficient prospects to justify an extension of time and leave to appeal.']

Ratio Decidendi

Because there was no personal procedural decision by the Minister to consider whether to exercise the s 48B power, the Department's handling of the applicant's request and finalisation without referral to the Minister had no statutory basis, was not a decision under the Migration Act 1958 (Cth) or a privative clause decision, and did not attract any obligation to afford procedural fairness. The proposed appeal therefore had no reasonable prospects of success, so the extension of time and leave to appeal were refused.

Court Disposition

Application refused and dismissed with costs.

Orders

  • ['The application for an extension of time in which to file an application for leave to appeal and for any appeal be refused and dismissed with costs.']