DBQ16 v Minister for Immigration and Border Protection [2019] FCA 135

DBQ16 v Minister for Immigration and Border Protection [2019] FCA 135

The application was dismissed because the applicant failed to appear at the hearing after notice had been given, enlivening s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) or r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth). In any event, the proposed appeal had insufficient prospects to warrant an extension of time because the Tribunal disclosed the existence of the s 438 certificate, it was not arguable that the applicant lost any opportunity to advance her case by reason of the certificate, and it was not arguable that the primary judge erred in concluding that the Tribunal did not fall into jurisdictional error in the manner in which it dealt with the...

Jurisdiction
Australia
Judgment Date
14 February 2019
Procedural Posture
Migration Application for an Extension of Time to Appeal From a Judgment of the Federal Circuit Court of Australia / Hearing of Application for Extension of Time; Application Dismissed After the Applicant Failed to Appear
Outcome
Application for an extension of time dismissed with costs.
Legal Topics
['extension of Time to Appeal' 'failure to Appear' 'protection Visa' 'judicial Review' 'procedural Fairness' 'section 438 Certificate' 'jurisdictional Error']
['migration' 'administrative Law'] ['extension of Time to Appeal' 'failure to Appear' 'protection Visa' 'judicial Review' 'procedural Fairness' 'section 438 Certificate' 'jurisdictional Error']

Case Brief

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Procedural Posture

Migration Application for an Extension of Time to Appeal From a Judgment of the Federal Circuit Court of Australia / Hearing of Application for Extension of Time; Application Dismissed After the Applicant Failed to Appear

Legal Issues

  1. 1 ['Whether the application for an extension of time should be dismissed because the applicant failed to appear at the hearing.' 'Whether time should be extended where the notice of appeal was one day out of time.' "Whether the proposed appeal had sufficient prospects of success in relation to the Tribunal's handling of a purported certificate under s 438 of the Migration Act 1958 (Cth)." 'Whether the applicant lost any opportunity to advance her case, or whether the Tribunal fell into jurisdictional error, by reason of the certificate or documents purportedly covered by it.']

Ratio Decidendi

The application was dismissed because the applicant failed to appear at the hearing after notice had been given, enlivening s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) or r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth). In any event, the proposed appeal had insufficient prospects to warrant an extension of time because the Tribunal disclosed the existence of the s 438 certificate, it was not arguable that the applicant lost any opportunity to advance her case by reason of the certificate, and it was not arguable that the primary judge erred in concluding that the Tribunal did not fall into jurisdictional error in the manner in which it dealt with the...

Court Disposition

Application for an extension of time dismissed with costs.

Orders

  • ['The application for an extension of time is dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 or r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth).' 'The applicant is to pay the costs of the first respondent, as agreed or assessed.']