SZMBW v Minister for Immigration and Citizenship [2008] FCA 1767

SZMBW v Minister for Immigration and Citizenship [2008] FCA 1767

The application was dismissed because none of the proposed grounds of appeal had any prospect of success. The short delay in filing was sufficiently explained, but the Federal Magistrates Court decision dismissing the show cause application as disclosing no arguable basis for relief was not attended with sufficient doubt and substantial injustice would not arise from refusing an extension of time and leave to appeal. The Tribunal had considered the relevant evidence, was not required by s 424A(1) to put its reasoning about the applicant's own documents to her, and its reliance on s 91R(3) did not demonstrate bias or apprehended bias.

Jurisdiction
Australia
Judgment Date
26 November 2008
Procedural Posture
Migration Application for Extension of Time and Leave to Appeal / Application for Extension of Time to File a Notice of Appeal and for Leave to Appeal an Interlocutory Order of the Federal Magistrates Court
Outcome
The application filed 16 July 2008 was dismissed, with costs payable to the first respondent.
Legal Topics
['protection Visa Refusal' 'refugee Review Tribunal Decision' 'extension of Time' 'leave to Appeal Interlocutory Order' 'jurisdictional Error' 'section 424 a Procedural Obligation' 'apprehended Bias' 'credibility Findings' 'conduct in Australia Under S 91 R(3)']
['migration Law' 'administrative Law' 'appellate Procedure'] ['protection Visa Refusal' 'refugee Review Tribunal Decision' 'extension of Time' 'leave to Appeal Interlocutory Order' 'jurisdictional Error' 'section 424 a Procedural Obligation' 'apprehended Bias' 'credibility Findings' 'conduct in Australia Under S 91 R(3)']

Case Brief

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Procedural Posture

Migration Application for Extension of Time and Leave to Appeal / Application for Extension of Time to File a Notice of Appeal and for Leave to Appeal an Interlocutory Order of the Federal Magistrates Court

Legal Issues

  1. 1 ['Whether time should be extended for the applicant to file a notice of appeal from the Federal Magistrates Court orders made on 10 June 2008.' "Whether leave should be granted to appeal an interlocutory order dismissing the applicant's show cause application under r 44.12(1)(a) of the Federal Magistrates Court Rules." 'Whether the Federal Magistrates Court judgment was attended with sufficient doubt to warrant appellate reconsideration.' 'Whether substantial injustice would result if leave to appeal were refused.' 'Whether the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) in relation to documents provided by the applicant.' "Whether the Tribunal failed to consider the applicant's claims properly and fairly." "Whether the Tribunal's treatment of the applicant's evidence of church attendance in Sydney gave rise to a reasonable apprehension of bias."]

Ratio Decidendi

The application was dismissed because none of the proposed grounds of appeal had any prospect of success. The short delay in filing was sufficiently explained, but the Federal Magistrates Court decision dismissing the show cause application as disclosing no arguable basis for relief was not attended with sufficient doubt and substantial injustice would not arise from refusing an extension of time and leave to appeal. The Tribunal had considered the relevant evidence, was not required by s 424A(1) to put its reasoning about the applicant's own documents to her, and its reliance on s 91R(3) did not demonstrate bias or apprehended bias.

Court Disposition

The application filed 16 July 2008 was dismissed, with costs payable to the first respondent.

Orders

  • ['The application filed 16 July 2008 is dismissed.' 'The applicant shall pay the costs of the first respondent of and incidental to the application.']