DUY18 v Minister for Home Affairs [2019] FCA 1564

DUY18 v Minister for Home Affairs [2019] FCA 1564

The applicant's present protection visa application was invalid because, after earlier protection visa applications had been refused and without any s 48B consideration arising on the evidence, s 48A(1) prevented him from making a further protection visa application while in Australia. The applicant did not distinguish the authorities rejecting his Form 866 argument, and his proposed appeal grounds did not show error in the primary judge's conclusion that the judicial review application had no reasonable prospect of success. The extension of time and leave to appeal were therefore refused.

Jurisdiction
Australia
Judgment Date
24 September 2019
Procedural Posture
Migration Application for an Extension of Time and Leave to Appeal / Application in the Federal Court of Australia for an Extension of Time and Leave to Appeal From Federal Circuit Court Orders Dismissing an Application for Judicial Review
Outcome
The application for an extension of time in which to file an application for leave to appeal was refused with costs.
Legal Topics
['protection Visa' 'invalid Visa Application' 'migration Act 1958 (cth) S 48 A' 'extension of Time' 'leave to Appeal' 'summary Dismissal' 'jurisdictional Error' 'procedural Fairness']
['migration Law' 'administrative Law'] ['protection Visa' 'invalid Visa Application' 'migration Act 1958 (cth) S 48 A' 'extension of Time' 'leave to Appeal' 'summary Dismissal' 'jurisdictional Error' 'procedural Fairness']

Case Brief

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Procedural Posture

Migration Application for an Extension of Time and Leave to Appeal / Application in the Federal Court of Australia for an Extension of Time and Leave to Appeal From Federal Circuit Court Orders Dismissing an Application for Judicial Review

Legal Issues

  1. 1 ["Whether the applicant should be granted an extension of time and leave to appeal from the Federal Circuit Court's summary dismissal of his judicial review application." 'Whether the primary judge erred in concluding that the applicant had no reasonable prospect of successfully prosecuting the proceeding.' 'Whether s 48A of the Migration Act 1958 (Cth) prevented the applicant from making a further protection visa application while in Australia after earlier protection visa applications had been refused.' "Whether the applicant's Form 866 and incorporation argument provided any basis to distinguish BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 or SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121."]

Ratio Decidendi

The applicant's present protection visa application was invalid because, after earlier protection visa applications had been refused and without any s 48B consideration arising on the evidence, s 48A(1) prevented him from making a further protection visa application while in Australia. The applicant did not distinguish the authorities rejecting his Form 866 argument, and his proposed appeal grounds did not show error in the primary judge's conclusion that the judicial review application had no reasonable prospect of success. The extension of time and leave to appeal were therefore refused.

Court Disposition

The application for an extension of time in which to file an application for leave to appeal was refused with costs.

Orders

  • ['The application for an extension of time in which to file a notice of appeal be refused with costs.' 'These orders not be formally entered prior to the publication of reasons for judgment.' 'The matter be set down for publication of reasons on Tuesday 24 September 2019 at 2:15pm.']