Rascovici v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1191

Rascovici v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1191

The proposed appeal lacked sufficient merit to justify an extension of time. Ground 1 had no reasonable prospect because the Applicant's visa cancellation arose from subsequent 2019 offending and imprisonment, which provided a new factual basis independent of the 2014 s 501(1) decision; Makasa did not prohibit the Tribunal, at the discretionary non-revocation stage and under Direction No 79, from considering the Applicant's whole criminal history. Ground 2 had no reasonable prospect because the Tribunal used the Culibrk letter to reject the claimed offer of secure employment as a protective factor and did not find that the Applicant was responsible for producing the bogus document or rely...

Jurisdiction
Australia
Judgment Date
21 September 2021
Procedural Posture
Application for an Extension of Time to Appeal From an Administrative Appeals Tribunal Migration Decision / Federal Court Determination of Application for Extension of Time to Appeal
Outcome
Application for an extension of time to appeal refused; application dismissed with costs.
Legal Topics
['visa Cancellation on Character Grounds' 'revocation of Mandatory Visa Cancellation Under S 501 Ca' 'extension of Time to Appeal' 'previously Considered Criminal History' 'direction No 79' 'assessment of Risk to the Australian Community' 'merit of Proposed Grounds of Appeal']
['migration' 'administrative Law' 'judicial Review'] ['visa Cancellation on Character Grounds' 'revocation of Mandatory Visa Cancellation Under S 501 Ca' 'extension of Time to Appeal' 'previously Considered Criminal History' 'direction No 79' 'assessment of Risk to the Australian Community' 'merit of Proposed Grounds of Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for an Extension of Time to Appeal From an Administrative Appeals Tribunal Migration Decision / Federal Court Determination of Application for Extension of Time to Appeal

Legal Issues

  1. 1 ['Whether an extension of time to appeal should be granted having regard to delay, prejudice and the merits of the proposed grounds.' 'Whether the Tribunal erred, in the sense identified in Minister for Immigration and Border Protection v Makasa [2021] HCA 1, by taking into account criminal history between 2006 and 2014 that had been considered in an earlier favourable s 501(1) decision.' 'Whether the Tribunal committed jurisdictional error by treating the authenticity of a letter said to offer the Applicant stable work as a matter of significant concern when assessing risk to the Australian community.']

Ratio Decidendi

The proposed appeal lacked sufficient merit to justify an extension of time. Ground 1 had no reasonable prospect because the Applicant's visa cancellation arose from subsequent 2019 offending and imprisonment, which provided a new factual basis independent of the 2014 s 501(1) decision; Makasa did not prohibit the Tribunal, at the discretionary non-revocation stage and under Direction No 79, from considering the Applicant's whole criminal history. Ground 2 had no reasonable prospect because the Tribunal used the Culibrk letter to reject the claimed offer of secure employment as a protective factor and did not find that the Applicant was responsible for producing the bogus document or rely...

Court Disposition

Application for an extension of time to appeal refused; application dismissed with costs.

Orders

  • ["The Applicant's application for an extension of time to appeal filed 13 September 2021 be dismissed." "The Applicant pay the First Respondent's costs as agreed or in default of agreement, as assessed."]