Kaur v Minister for Immigration and Border Protection (No 2) [2016] FCA 1088

Kaur v Minister for Immigration and Border Protection (No 2) [2016] FCA 1088

The application for an extension of time was dismissed because the 540 day delay was very substantial, the applicant did not provide an adequate explanation for the delay, and the proposed appeal was not reasonably arguable. The draft grounds lacked particulars, there was no evidence or apparent basis for the alleged refusal of an adjournment, the applicant had not produced evidence that she satisfied the essential skills assessment criterion, none of the grounds identified jurisdictional error in the Tribunal's finding that the criterion was not met, and any relief would be liable to be refused as futile. The proposed grounds also did not impugn the primary judge's critical findings...

Jurisdiction
Australia
Judgment Date
29 August 2016
Procedural Posture
Migration Application for Extension of Time to Appeal From a Federal Circuit Court Judgment Dismissing Judicial Review / Application for Extension of Time in Which to Appeal Under R 36.05 of the Federal Court Rules 2011 (cth)
Outcome
Application dismissed.
Legal Topics
['extension of Time to Appeal' 'skilled (provisional) (class Vc) Visa' 'skills Assessment Criterion' 'failure to Appear Before Tribunal' 'jurisdictional Error' 'ministerial Intervention' 'costs']
['migration' 'administrative Law' 'judicial Review' 'federal Court Procedure'] ['extension of Time to Appeal' 'skilled (provisional) (class Vc) Visa' 'skills Assessment Criterion' 'failure to Appear Before Tribunal' 'jurisdictional Error' 'ministerial Intervention' 'costs']

Case Brief

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Procedural Posture

Migration Application for Extension of Time to Appeal From a Federal Circuit Court Judgment Dismissing Judicial Review / Application for Extension of Time in Which to Appeal Under R 36.05 of the Federal Court Rules 2011 (cth)

Legal Issues

  1. 1 ['Whether time should be extended for the applicant to appeal from the Federal Circuit Court judgment.' 'Whether the applicant gave an adequate explanation for the 540 day delay in commencing the proposed appeal.' 'Whether the draft grounds of appeal were reasonably arguable.' 'Whether relief on the proposed appeal would be futile because the applicant had not shown she satisfied the skills assessment criterion in cl 485.221 of Sch 2 to the Migration Regulations 1994 (Cth).' 'Whether the proposed ground alleging refusal of an adjournment had any evidentiary or apparent basis.' "Whether the proposed grounds identified appealable error in the Federal Circuit Court's rejection of the claim that the Tribunal proceedings were affected by fraud."]

Ratio Decidendi

The application for an extension of time was dismissed because the 540 day delay was very substantial, the applicant did not provide an adequate explanation for the delay, and the proposed appeal was not reasonably arguable. The draft grounds lacked particulars, there was no evidence or apparent basis for the alleged refusal of an adjournment, the applicant had not produced evidence that she satisfied the essential skills assessment criterion, none of the grounds identified jurisdictional error in the Tribunal's finding that the criterion was not met, and any relief would be liable to be refused as futile. The proposed grounds also did not impugn the primary judge's critical findings...

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.' "The applicant is to pay the first respondent's costs of the application to be agreed or assessed, such costs not to exceed the amount of $1,756."]