S364 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 183

S364 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 183

Although it was appropriate to extend time because the Applicant was not present at the hearing before Emmett J and the Minister did not oppose an extension, leave to appeal was refused because the proposed grounds did not show sufficient doubt in Emmett J's decision or substantial injustice. The grounds in the draft notice of appeal were different from those advanced in the draft order nisi, were unsupported by evidence, included a challenge to a statutory provision not enacted when the Tribunal decided the matter, and any appeal would be futile.

Jurisdiction
Australia
Judgment Date
13 February 2006
Procedural Posture
Application for Leave to Appeal / Application for Extension of Time and Leave to Appeal From Refusal of Order Nisi for Constitutional Writ Relief
Outcome
Time for filing the application for leave to appeal extended; application for leave to appeal dismissed; Applicant ordered to pay the First Respondent's costs fixed at $800.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'constitutional Writ Relief' 'extension of Time' 'leave to Appeal' 'migration Act S 424 A']
['migration Law' 'administrative Law' 'appellate Procedure'] ['protection Visa' 'refugee Review Tribunal' 'constitutional Writ Relief' 'extension of Time' 'leave to Appeal' 'migration Act S 424 A']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Application for Extension of Time and Leave to Appeal From Refusal of Order Nisi for Constitutional Writ Relief

Legal Issues

  1. 1 ['Whether time for filing the application for leave to appeal should be extended.' "Whether leave to appeal should be granted from Emmett J's refusal of an order nisi for constitutional writ relief." "Whether the proposed appeal raised grounds showing sufficient doubt in Emmett J's decision and substantial injustice if leave were refused."]

Ratio Decidendi

Although it was appropriate to extend time because the Applicant was not present at the hearing before Emmett J and the Minister did not oppose an extension, leave to appeal was refused because the proposed grounds did not show sufficient doubt in Emmett J's decision or substantial injustice. The grounds in the draft notice of appeal were different from those advanced in the draft order nisi, were unsupported by evidence, included a challenge to a statutory provision not enacted when the Tribunal decided the matter, and any appeal would be futile.

Court Disposition

Time for filing the application for leave to appeal extended; application for leave to appeal dismissed; Applicant ordered to pay the First Respondent's costs fixed at $800.

Orders

  • ["The time for filing the Applicant's application for leave to appeal be extended up to an including 29 November 2005." 'The application for leave to appeal be dismissed.' "The Applicant pay the First Respondent's costs fixed in the agreed sum of $800."]