Baby v Minister for Immigration and Border Protection [2019] FCA 214

Baby v Minister for Immigration and Border Protection [2019] FCA 214

The applications were dismissed because the applicant gave no acceptable reason for filing 18 days late and the proposed appeal had no meaningful prospect of success. The Tribunal had sent the hearing invitation by email to the address provided by the applicant, so the statutory preconditions for proceeding in his absence were satisfied whether or not he actually received the invitation. The Tribunal was also obliged to affirm the delegate's refusal because the applicant lodged his Medical Treatment visa application more than six years after his last substantive visa expired, not within the required 28 days under cl 3001 of Sch 3 to the Migration Regulations 1994 (Cth), and no legal or...

Jurisdiction
Australia
Judgment Date
25 February 2019
Procedural Posture
Application for Extension of Time and Leave to Appeal From a Federal Circuit Court Decision Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Migration Decision / Applications for Extension of Time and Leave to Appeal
Outcome
The applications for an extension of time and leave to appeal were dismissed with costs.
Legal Topics
['medical Treatment (visitor) (class Ub) Visa' "tribunal Hearing in Applicant's Absence" 'extension of Time' 'leave to Appeal' 'jurisdictional Error' 'show Cause Dismissal']
['migration' 'administrative Law' 'appellate Procedure'] ['medical Treatment (visitor) (class Ub) Visa' "tribunal Hearing in Applicant's Absence" 'extension of Time' 'leave to Appeal' 'jurisdictional Error' 'show Cause Dismissal']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal From a Federal Circuit Court Decision Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Migration Decision / Applications for Extension of Time and Leave to Appeal

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time to file an application for leave to appeal.' "Whether leave to appeal should be granted from the Federal Circuit Court's show cause dismissal under r 44.12 of the Federal Circuit Court Rules 2001 (Cth)." "Whether the Tribunal erred or failed to exercise jurisdiction by determining the review in the applicant's absence after sending an invitation to attend by email." 'Whether the proposed grounds of appeal had meaningful prospects of success.' 'Whether the applicant could satisfy cl 3001 of Sch 3 to the Migration Regulations 1994 (Cth) for a Medical Treatment (Visitor) (Class UB) visa application lodged more than 28 days after his last substantive visa expired.']

Ratio Decidendi

The applications were dismissed because the applicant gave no acceptable reason for filing 18 days late and the proposed appeal had no meaningful prospect of success. The Tribunal had sent the hearing invitation by email to the address provided by the applicant, so the statutory preconditions for proceeding in his absence were satisfied whether or not he actually received the invitation. The Tribunal was also obliged to affirm the delegate's refusal because the applicant lodged his Medical Treatment visa application more than six years after his last substantive visa expired, not within the required 28 days under cl 3001 of Sch 3 to the Migration Regulations 1994 (Cth), and no legal or...

Court Disposition

The applications for an extension of time and leave to appeal were dismissed with costs.

Orders

  • ['The applications for an extension of time and leave to appeal are dismissed.' "The applicant must pay the first respondent's costs as agreed or taxed."]