SZUBI v Minister for Immigration and Border Protection [2015] FCA 1203

SZUBI v Minister for Immigration and Border Protection [2015] FCA 1203

The application failed because an appeal would have no reasonable prospects of success. The Tribunal correctly identified the matters required for safe third country protection under s 36(3), was entitled to find that the applicant had a right to enter and reside in India and had taken no steps to avail himself of that right, and its findings that he did not face a real chance of persecution or significant harm in India were factual findings open on the material. The applicant's grounds either sought to add an unsupported reasonable practicability gloss to s 36(3) or impermissibly sought merits review of adverse factual findings.

Jurisdiction
Australia
Judgment Date
10 November 2015
Procedural Posture
Migration; Application for Extension of Time and Leave to Appeal / Application in the Federal Court for an Extension of Time Within Which to File a Notice of Appeal From the Federal Circuit Court of Australia
Outcome
Application for extension of time refused with costs.
Legal Topics
['protection Visa' 'safe Third Country Protection' 'migration Act 1958 (cth) S 36(3)' 'jurisdictional Error' 'extension of Time' 'leave to Appeal' 'reasonable Prospects of Success']
['migration Law' 'administrative Law'] ['protection Visa' 'safe Third Country Protection' 'migration Act 1958 (cth) S 36(3)' 'jurisdictional Error' 'extension of Time' 'leave to Appeal' 'reasonable Prospects of Success']

Case Brief

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Procedural Posture

Migration; Application for Extension of Time and Leave to Appeal / Application in the Federal Court for an Extension of Time Within Which to File a Notice of Appeal From the Federal Circuit Court of Australia

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time and leave to appeal from the Federal Circuit Court decision.' 'Whether the Tribunal made a legal error in its findings and assessment on safe third country protection and relocation to India under s 36(3) of the Migration Act 1958 (Cth).' 'Whether the Tribunal overlooked claims that the applicant would face discrimination, lack of permanent residence rights, Maoist interest, or lack of legal protection in India.' 'Whether the internal relocation principle and reasonable practicability test applied to s 36(3).']

Ratio Decidendi

The application failed because an appeal would have no reasonable prospects of success. The Tribunal correctly identified the matters required for safe third country protection under s 36(3), was entitled to find that the applicant had a right to enter and reside in India and had taken no steps to avail himself of that right, and its findings that he did not face a real chance of persecution or significant harm in India were factual findings open on the material. The applicant's grounds either sought to add an unsupported reasonable practicability gloss to s 36(3) or impermissibly sought merits review of adverse factual findings.

Court Disposition

Application for extension of time refused with costs.

Orders

  • ['The application for an extension of time within which to file a notice of appeal is refused.' 'The applicant pay the costs of the first respondent, to be taxed if not agreed.']