M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293

M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293

The appeal was dismissed because the appellant had no real prospects of establishing jurisdictional error, offered no adequate explanation for a delay requiring an extension of more than two and a half years for certiorari, and the fresh or sur place matters did not bear on any jurisdictional error by the Tribunal. Prohibition was also unavailable because, while the Tribunal's decision stood, there was no further Tribunal proceeding to prohibit and the Minister was under a statutory duty to remove the appellant.

Jurisdiction
Australia
Judgment Date
12 November 2004
Procedural Posture
Migration Appeal From Refusal of Application for Orders Nisi for Writs of Prohibition and Certiorari and Refusal to Enlarge Time / Full Court Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'jurisdictional Error' 'extension of Time' 'certiorari' 'prohibition' 'ministerial Discretion Under S 417' 'refugee Sur Place Claim' 'fresh Evidence']
['migration Law' 'administrative Law' 'refugee Law'] ['protection Visa' 'refugee Review Tribunal' 'jurisdictional Error' 'extension of Time' 'certiorari' 'prohibition' 'ministerial Discretion Under S 417' 'refugee Sur Place Claim' 'fresh Evidence']

Case Brief

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Procedural Posture

Migration Appeal From Refusal of Application for Orders Nisi for Writs of Prohibition and Certiorari and Refusal to Enlarge Time / Full Court Appeal

Legal Issues

  1. 1 ["Whether time should be enlarged for the appellant to seek certiorari against the Tribunal's decision made more than three years before the High Court application." "Whether the appellant had arguable grounds of jurisdictional error concerning the Tribunal's treatment of claimed exclusion from tertiary education, Arab ethnicity, and claimed political activities involving Gahbat Tahrir Arabistan." "Whether fresh evidence and refugee sur place matters arising after the Tribunal's decision could be relied on in the judicial review application." "Whether prohibition was available against the Minister or Tribunal while the Tribunal's decision stood."]

Ratio Decidendi

The appeal was dismissed because the appellant had no real prospects of establishing jurisdictional error, offered no adequate explanation for a delay requiring an extension of more than two and a half years for certiorari, and the fresh or sur place matters did not bear on any jurisdictional error by the Tribunal. Prohibition was also unavailable because, while the Tribunal's decision stood, there was no further Tribunal proceeding to prohibit and the Minister was under a statutory duty to remove the appellant.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the respondents' costs of the appeal."]