Ferreira v Minister for Home Affairs [2019] FCA 1657

Ferreira v Minister for Home Affairs [2019] FCA 1657

The extension of time was granted because the delay was adequately explained, the Minister asserted no relevant prejudice, and the proposed grounds were not without prospects at an impressionistic level. The judicial review application failed because grounds 1 and 2 could not succeed in light of the applicant's concession concerning Steve and Azar, and ground 3 did not establish jurisdictional error. The Tribunal considered the applicant's mental health, drug addiction, language difficulties, possible lack of cost-free healthcare and employment prospects in Portugal, and gave significant weight to impediments on removal. That reasoning showed proper, genuine and realistic consideration...

Jurisdiction
Australia
Judgment Date
10 October 2019
Procedural Posture
Application for an Extension of Time and Application for Judicial Review of a Migration Decision / Federal Court Review of an Administrative Appeals Tribunal Decision Affirming a Delegate's Decision Not to Revoke Mandatory Cancellation of the Applicant's Visa
Outcome
Extension of time granted; leave to file the amended application granted; amended originating application dismissed; applicant ordered to pay the first respondent's costs as agreed or taxed.
Legal Topics
['mandatory Visa Cancellation' 'character Test' 'revocation Under S 501 Ca(4)' 'extension of Time' 'proper, Genuine and Realistic Consideration' 'legal Unreasonableness' 'impediments on Removal']
['migration Law' 'administrative Law' 'judicial Review'] ['mandatory Visa Cancellation' 'character Test' 'revocation Under S 501 Ca(4)' 'extension of Time' 'proper, Genuine and Realistic Consideration' 'legal Unreasonableness' 'impediments on Removal']

Case Brief

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Procedural Posture

Application for an Extension of Time and Application for Judicial Review of a Migration Decision / Federal Court Review of an Administrative Appeals Tribunal Decision Affirming a Delegate's Decision Not to Revoke Mandatory Cancellation of the Applicant's Visa

Legal Issues

  1. 1 ['Whether an extension of time should be granted under s 477A(2) of the Migration Act 1958 (Cth).' 'Whether the Tribunal made jurisdictional error by not having regard to Art 12(4) of the ICCPR.' 'Whether s 501CA of the Migration Act 1958 (Cth) did not apply to the applicant because he was not a "person" within that provision.' "Whether the Tribunal failed to give proper, genuine and realistic consideration to the applicant's need for and ability to access mental healthcare in Portugal." 'Whether the Tribunal\'s attribution of only "significant weight" to impediments on removal lacked an evident and intelligible justification.']

Ratio Decidendi

The extension of time was granted because the delay was adequately explained, the Minister asserted no relevant prejudice, and the proposed grounds were not without prospects at an impressionistic level. The judicial review application failed because grounds 1 and 2 could not succeed in light of the applicant's concession concerning Steve and Azar, and ground 3 did not establish jurisdictional error. The Tribunal considered the applicant's mental health, drug addiction, language difficulties, possible lack of cost-free healthcare and employment prospects in Portugal, and gave significant weight to impediments on removal. That reasoning showed proper, genuine and realistic consideration...

Court Disposition

Extension of time granted; leave to file the amended application granted; amended originating application dismissed; applicant ordered to pay the first respondent's costs as agreed or taxed.

Orders

  • ['The amended originating application for review of a migration decision filed on 22 July 2019 is dismissed.' 'The applicant pay the costs of the first respondent as agreed or taxed.']