ESK18 v Minister for Home Affairs [2019] FCA 935

ESK18 v Minister for Home Affairs [2019] FCA 935

Although the applicant provided an explanation for a delay that was just over one month after expiry of the appeal period, the determinative factor was that the proposed appeal had no reasonable prospect of success. The Tribunal disclosed rational reasons for rejecting the applicant's claims based on credibility findings, lack of probative evidence, findings that some claims were speculative or baseless, and assessment of country information. The applicant sought impermissible merits review, and no jurisdictional error was disclosed in the Tribunal's or primary judge's reasoning. Leave to appeal and an extension of time were therefore not justified.

Jurisdiction
Australia
Judgment Date
19 June 2019
Procedural Posture
Application for Extension of Time and Leave to Appeal From Dismissal of an Application for Judicial Review of a Protection Visa Decision / Federal Court Application for Extension of Time to Seek Leave to Appeal
Outcome
Application for an extension of time dismissed; applicant ordered to pay the first respondent's costs to be assessed if not agreed.
Legal Topics
['protection Visa Refusal' 'extension of Time' 'leave to Appeal From Interlocutory Judgment' 'judicial Review' 'show Cause Hearing' 'country Information' 'complementary Protection']
['migration' 'administrative Law'] ['protection Visa Refusal' 'extension of Time' 'leave to Appeal From Interlocutory Judgment' 'judicial Review' 'show Cause Hearing' 'country Information' 'complementary Protection']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal From Dismissal of an Application for Judicial Review of a Protection Visa Decision / Federal Court Application for Extension of Time to Seek Leave to Appeal

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time to seek leave to appeal.' "Whether leave to appeal should be granted from the Federal Circuit Court's dismissal at a show cause hearing." "Whether the proposed appeal had sufficient prospects of success in challenging the Tribunal's findings about claimed harm from a land dispute, criminal record publicity, and inter-religious marriage." 'Whether the Tribunal committed jurisdictional error in its treatment of credibility, country information, refugee claims and complementary protection.']

Ratio Decidendi

Although the applicant provided an explanation for a delay that was just over one month after expiry of the appeal period, the determinative factor was that the proposed appeal had no reasonable prospect of success. The Tribunal disclosed rational reasons for rejecting the applicant's claims based on credibility findings, lack of probative evidence, findings that some claims were speculative or baseless, and assessment of country information. The applicant sought impermissible merits review, and no jurisdictional error was disclosed in the Tribunal's or primary judge's reasoning. Leave to appeal and an extension of time were therefore not justified.

Court Disposition

Application for an extension of time dismissed; applicant ordered to pay the first respondent's costs to be assessed if not agreed.

Orders

  • ['Application for an extension of time dismissed.' "The applicant is to pay the first respondent's costs to be assessed if not agreed."]