Downing v Minister for Immigration and Border Protection [2019] FCA 1684

Downing v Minister for Immigration and Border Protection [2019] FCA 1684

Although the applicant gave an adequate explanation for the 28 day delay and the Minister did not claim prejudice, none of the proposed grounds of judicial review was reasonably arguable. The Tribunal considered the applicant's residence in Australia, family ties, mental health, drug addiction, risk of reoffending, warning letters and relevant Direction 65 considerations, and the applicant's complaints were impermissible attempts to re-agitate merits or were immaterial. The constitutional challenge also failed because binding authority established that s 501 was validly supported by the aliens power in its application to the applicant. It was therefore not necessary in the interests of...

Jurisdiction
Australia
Judgment Date
16 October 2019
Procedural Posture
Application for Extension of Time to Apply for Judicial Review of a Decision of the Administrative Appeals Tribunal Affirming Refusal to Revoke Mandatory Visa Cancellation / Federal Court Application for Extension of Time
Outcome
Application dismissed with costs.
Legal Topics
['mandatory Cancellation of Visa Under S 501(3 A) Migration Act 1958 (cth)' 'extension of Time Under S 477 a Migration Act 1958 (cth)' 'judicial Review for Jurisdictional Error' 'character Test' 'ministerial Direction 65' 'aliens Power Under S 51(xix) of the Constitution']
['migration Law' 'administrative Law' 'constitutional Law'] ['mandatory Cancellation of Visa Under S 501(3 A) Migration Act 1958 (cth)' 'extension of Time Under S 477 a Migration Act 1958 (cth)' 'judicial Review for Jurisdictional Error' 'character Test' 'ministerial Direction 65' 'aliens Power Under S 51(xix) of the Constitution']

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Procedural Posture

Application for Extension of Time to Apply for Judicial Review of a Decision of the Administrative Appeals Tribunal Affirming Refusal to Revoke Mandatory Visa Cancellation / Federal Court Application for Extension of Time

Legal Issues

  1. 1 ["Whether it was necessary in the interests of the administration of justice to extend time for the applicant to seek judicial review of the Tribunal's decision." 'Whether the applicant had an adequate explanation for lodging the judicial review application outside the 35 day time limit.' 'Whether any proposed ground of review disclosed a reasonably arguable jurisdictional error by the Tribunal.' 'Whether s 501 of the Migration Act 1958 (Cth) was constitutionally valid in its application to the applicant.']

Ratio Decidendi

Although the applicant gave an adequate explanation for the 28 day delay and the Minister did not claim prejudice, none of the proposed grounds of judicial review was reasonably arguable. The Tribunal considered the applicant's residence in Australia, family ties, mental health, drug addiction, risk of reoffending, warning letters and relevant Direction 65 considerations, and the applicant's complaints were impermissible attempts to re-agitate merits or were immaterial. The constitutional challenge also failed because binding authority established that s 501 was validly supported by the aliens power in its application to the applicant. It was therefore not necessary in the interests of...

Court Disposition

Application dismissed with costs.

Orders

  • ['The application for an extension of time to apply for judicial review of the decision of the second respondent is dismissed.' 'The applicant must pay the costs of the first respondent, to be assessed if not agreed.']