SZSPR v Minister for Immigration and Border Protection [2013] FCA 1210

SZSPR v Minister for Immigration and Border Protection [2013] FCA 1210

Although the applicant made genuine efforts to appeal within time and the Minister accepted there was no prejudice, leave to appeal was refused because the proposed grounds merely repeated the substance of the judicial review challenge to the Tribunal and did not put in issue the Federal Circuit Court's reason for dismissal, namely the applicant's non-appearance without satisfactory explanation under r 13.03C(1)(c). The proposed appeal was not likely to succeed, the Federal Circuit Court was the proper forum for the substantive judicial review in the first instance, and the applicant had not pursued the available course of applying in that Court to set aside the dismissal order under r...

Jurisdiction
Australia
Judgment Date
14 November 2013
Procedural Posture
Application for Extension of Time and Leave to Appeal / Appeal From Decision of the Federal Circuit Court Dismissing an Application for Judicial Review Under R 13.03 C(1)(c) of the Federal Circuit Court Rules 2001 (cth)
Outcome
The application for extension of time and leave to appeal was dismissed.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'extension of Time' 'leave to Appeal' 'default of Appearance' 'jurisdictional Error']
['migration Law' 'administrative Law' 'civil Procedure'] ['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'extension of Time' 'leave to Appeal' 'default of Appearance' 'jurisdictional Error']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal / Appeal From Decision of the Federal Circuit Court Dismissing an Application for Judicial Review Under R 13.03 C(1)(c) of the Federal Circuit Court Rules 2001 (cth)

Legal Issues

  1. 1 ['Whether an extension of time should be granted for the application for leave to appeal.' "Whether leave to appeal should be granted from the Federal Circuit Court's dismissal of the judicial review application for non-appearance." "Whether the proposed grounds disclosed sufficient doubt in the Federal Circuit Court's decision or risk of substantial injustice if leave were refused." 'Whether the applicant should instead have applied to the Federal Circuit Court to set aside the dismissal order under r 16.05(2)(a) or r 16.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth).']

Ratio Decidendi

Although the applicant made genuine efforts to appeal within time and the Minister accepted there was no prejudice, leave to appeal was refused because the proposed grounds merely repeated the substance of the judicial review challenge to the Tribunal and did not put in issue the Federal Circuit Court's reason for dismissal, namely the applicant's non-appearance without satisfactory explanation under r 13.03C(1)(c). The proposed appeal was not likely to succeed, the Federal Circuit Court was the proper forum for the substantive judicial review in the first instance, and the applicant had not pursued the available course of applying in that Court to set aside the dismissal order under r...

Court Disposition

The application for extension of time and leave to appeal was dismissed.

Orders

  • ['The title of the first respondent be amended to "Minister for Immigration and Border Protection".' 'The application for extension of time and leave to appeal be dismissed.' "The applicant pay the first respondent's costs as agreed or assessed."]