Wander v Minister for Immigration and Border Protection [2018] FCA 1288

Wander v Minister for Immigration and Border Protection [2018] FCA 1288

The Court treated the application as an application for an extension of time to seek leave to appeal from the interlocutory Federal Circuit Court judgment, but dismissed it under r 35.33(1)(a)(i) because the applicant failed to appear after being notified of the hearing. The dismissal was reinforced by the absence of any apparent merit in the proposed appeal: the Tribunal had sought and allowed time for evidence of enrolment and health insurance, no further material was provided, and the primary judge's rejection of the procedural fairness and related complaints disclosed no apparent error.

Jurisdiction
Australia
Judgment Date
24 August 2018
Procedural Posture
Application for an Extension of Time and Leave to Appeal / Federal Court Application From Interlocutory Judgment of the Federal Circuit Court
Outcome
Application treated as an application for an extension of time to seek leave to appeal and dismissed under r 35.33 of the Federal Court Rules 2011 (Cth).
Legal Topics
['extension of Time' 'leave to Appeal' 'judicial Review of Migration Decision' 'procedural Fairness' 'student Visa Refusal' 'non Appearance' 'costs']
['migration Law' 'administrative Law' 'federal Court Procedure'] ['extension of Time' 'leave to Appeal' 'judicial Review of Migration Decision' 'procedural Fairness' 'student Visa Refusal' 'non Appearance' 'costs']

Case Brief

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Procedural Posture

Application for an Extension of Time and Leave to Appeal / Federal Court Application From Interlocutory Judgment of the Federal Circuit Court

Legal Issues

  1. 1 ["Whether the applicant's application under r 31.23 of the Federal Court Rules 2011 (Cth) was competent where the Federal Circuit Court judgment was not a migration decision." 'Whether the application should be treated as an application for an extension of time to seek leave to appeal from the interlocutory judgment of the Federal Circuit Court.' "Whether the application should be dismissed for the applicant's non-appearance under r 35.33 of the Federal Court Rules 2011 (Cth)." 'Whether the proposed appeal had reasonable prospects of success, including on grounds alleging procedural fairness error, failure to grant an adjournment, and reliance on PAM.']

Ratio Decidendi

The Court treated the application as an application for an extension of time to seek leave to appeal from the interlocutory Federal Circuit Court judgment, but dismissed it under r 35.33(1)(a)(i) because the applicant failed to appear after being notified of the hearing. The dismissal was reinforced by the absence of any apparent merit in the proposed appeal: the Tribunal had sought and allowed time for evidence of enrolment and health insurance, no further material was provided, and the primary judge's rejection of the procedural fairness and related complaints disclosed no apparent error.

Court Disposition

Application treated as an application for an extension of time to seek leave to appeal and dismissed under r 35.33 of the Federal Court Rules 2011 (Cth).

Orders

  • ['The application filed by the applicant in this Court on 16 November 2017 be treated as an application for an extension of time to seek leave to appeal from the interlocutory judgment of the Federal Circuit Court delivered on 19 October 2017.' 'The application filed by the applicant in this Court on 16 November...