Li v Minister for Home Affairs [2018] FCA 1759

Li v Minister for Home Affairs [2018] FCA 1759

The application was dismissed because, although the delay was relatively short and there was little prejudice to the Minister, the applicant provided no satisfactory explanation for the delay, the draft notice of appeal identified no arguable case for relief, and the proposed appeal was futile because the applicant could not satisfy the mandatory requirement in cl 3001(1) of Sch 3 to the Migration Regulations 1994.

Jurisdiction
Australia
Judgment Date
13 November 2018
Procedural Posture
Migration Application for Extension of Time and Leave to Appeal / Federal Court Application Under R 35.14 of the Federal Court Rules 2011 From an Interlocutory Federal Circuit Court Judgment Dismissing an Application to Set Aside an Earlier Dismissal Order
Outcome
Application for extension of time and leave to appeal dismissed with costs.
Legal Topics
['extension of Time' 'leave to Appeal' 'medical Treatment (visitor) (class Ub) Visa' 'schedule 3 Criteria' 'failure to Attend Hearing' 'judicial Review of Migration Decision']
['migration Law' 'administrative Law' 'federal Civil Procedure'] ['extension of Time' 'leave to Appeal' 'medical Treatment (visitor) (class Ub) Visa' 'schedule 3 Criteria' 'failure to Attend Hearing' 'judicial Review of Migration Decision']

Case Brief

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Procedural Posture

Migration Application for Extension of Time and Leave to Appeal / Federal Court Application Under R 35.14 of the Federal Court Rules 2011 From an Interlocutory Federal Circuit Court Judgment Dismissing an Application to Set Aside an Earlier Dismissal Order

Legal Issues

  1. 1 ['Whether the applicant provided an acceptable explanation for filing the application for leave to appeal 14 days out of time' 'Whether the proposed appeal had sufficient merit to justify an extension of time and leave to appeal' 'Whether the primary judge erred in refusing to set aside the order dismissing the Federal Circuit Court judicial review application' 'Whether the applicant could satisfy cl 3001(1) of Sch 3 to the Migration Regulations 1994']

Ratio Decidendi

The application was dismissed because, although the delay was relatively short and there was little prejudice to the Minister, the applicant provided no satisfactory explanation for the delay, the draft notice of appeal identified no arguable case for relief, and the proposed appeal was futile because the applicant could not satisfy the mandatory requirement in cl 3001(1) of Sch 3 to the Migration Regulations 1994.

Court Disposition

Application for extension of time and leave to appeal dismissed with costs.

Orders

  • ['The application for extension of time and leave to appeal filed on 6 June 2018 be dismissed.' "The applicant pay the first respondent's costs."]