DVI17 v Minister for Immigration and Border Protection [2019] FCA 31

DVI17 v Minister for Immigration and Border Protection [2019] FCA 31

Although the delay was short and the first respondent identified no prejudice, the explanation for delay was deficient and the proposed appeal was weak. The applicant had not expressly claimed fear of harm based on tribal affiliation, had not identified any tribal affiliation, and the country information relied on concerned Ghor Province generally rather than showing that tribal affiliation was a source of conflict in the applicant's home district of Lal Wa Sarjangal. The claim therefore did not arise squarely or clearly emerge from the material before the Immigration Assessment Authority, so it was not appropriate to grant an extension of time.

Jurisdiction
Australia
Judgment Date
23 January 2019
Procedural Posture
Application for Extension of Time to File a Notice of Appeal From Orders of the Federal Circuit Court of Australia / Federal Court Application for Extension of Time; Hearing Also Proceeded as the Hearing of the Appeal Should an Extension Be Granted
Outcome
Application for extension of time dismissed with costs payable to the first respondent.
Legal Topics
['extension of Time to Appeal' 'protection Visa' 'safe Haven Enterprise Visa' 'jurisdictional Error' 'claims Apparent on the Material Before a Decision Maker']
['migration' 'administrative Law'] ['extension of Time to Appeal' 'protection Visa' 'safe Haven Enterprise Visa' 'jurisdictional Error' 'claims Apparent on the Material Before a Decision Maker']

Case Brief

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Procedural Posture

Application for Extension of Time to File a Notice of Appeal From Orders of the Federal Circuit Court of Australia / Federal Court Application for Extension of Time; Hearing Also Proceeded as the Hearing of the Appeal Should an Extension Be Granted

Legal Issues

  1. 1 ["Whether the applicant should be granted an extension of time to file a notice of appeal from the Federal Circuit Court's orders." 'Whether the proposed appeal had sufficient merit on the contention that the Immigration Assessment Authority failed to consider a claim to protection based on tribal affiliation said to be apparent on the material before it.']

Ratio Decidendi

Although the delay was short and the first respondent identified no prejudice, the explanation for delay was deficient and the proposed appeal was weak. The applicant had not expressly claimed fear of harm based on tribal affiliation, had not identified any tribal affiliation, and the country information relied on concerned Ghor Province generally rather than showing that tribal affiliation was a source of conflict in the applicant's home district of Lal Wa Sarjangal. The claim therefore did not arise squarely or clearly emerge from the material before the Immigration Assessment Authority, so it was not appropriate to grant an extension of time.

Court Disposition

Application for extension of time dismissed with costs payable to the first respondent.

Orders

  • ["The applicant's application for an extension of time to file a notice of appeal be dismissed." "The applicant pay the first respondent's costs of the application, to be fixed by way of a lump sum." "Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first...