Milne v Minister for Immigration and Citizenship [2010] FCA 987

Milne v Minister for Immigration and Citizenship [2010] FCA 987

Special reasons existed to extend time because the delay was relatively short and substantially explained by efforts to obtain legal advice, the Minister suffered no prejudice while Mr Milne remained in immigration detention, refusal would have serious consequences for Mr Milne, and the proposed grounds of appeal were arguable, particularly the contention that the Tribunal may have denied procedural fairness by not asking whether he remained prepared to undertake rehabilitation before relying on lack of rehabilitation in assessing cancellation considerations.

Jurisdiction
Australia
Judgment Date
07 September 2010
Procedural Posture
Application for Extension of Time to File and Serve a Notice of Appeal / Leave to File and Serve a Notice of Appeal Granted
Outcome
Application granted; leave to file and serve a notice of appeal granted.
Legal Topics
['visa Cancellation' 'character Test' 'procedural Fairness' 'extension of Time to Appeal' 'rehabilitation Evidence']
['migration Law' 'administrative Law'] ['visa Cancellation' 'character Test' 'procedural Fairness' 'extension of Time to Appeal' 'rehabilitation Evidence']

Case Brief

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Procedural Posture

Application for Extension of Time to File and Serve a Notice of Appeal / Leave to File and Serve a Notice of Appeal Granted

Legal Issues

  1. 1 ['Whether special reasons existed under O 52 r 15 to extend time for Mr Milne to file and serve a notice of appeal.' "Whether the proposed appeal had reasonable prospects of success on the contention that the Tribunal denied procedural fairness by relying on lack of rehabilitation and not raising Mr Milne's preparedness to undertake a rehabilitation program." 'Whether the primary judge arguably erred in treating s 500 (6H), (6J) and (6L) of the Migration Act 1958 (Cth) as preventing meaningful procedural fairness being afforded.' 'Whether Mr Milne was required to lead evidence of what he would have said to the Tribunal if asked about his willingness to undertake rehabilitation.']

Ratio Decidendi

Special reasons existed to extend time because the delay was relatively short and substantially explained by efforts to obtain legal advice, the Minister suffered no prejudice while Mr Milne remained in immigration detention, refusal would have serious consequences for Mr Milne, and the proposed grounds of appeal were arguable, particularly the contention that the Tribunal may have denied procedural fairness by not asking whether he remained prepared to undertake rehabilitation before relying on lack of rehabilitation in assessing cancellation considerations.

Court Disposition

Application granted; leave to file and serve a notice of appeal granted.

Orders

  • ['The applicant have leave to file and serve a Notice of Appeal in the form of the draft Notice of Appeal filed on 29 July 2010, within 7 days of the making of this order.' 'Costs of the application are costs in the appeal.']