FEDERAL COURT OF AUSTRALIA
DIR16 v Minister for Home Affairs [2018] FCA 1935
Appeal from: Application for extension of time: DIR16 v Minister for Immigration and Border Protection [2018] FCCA 992 File number: NSD 837 of 2018 Judge: FLICK J Date of judgment: 4 December 2018 Catchwords: PRACTICE AND PROCEDURE – application for extension of time – where period of delay short – where no prejudice claimed – where proposed grounds of appeal without prospects of success – application refused Legislation: Migration Act 1958 (Cth) ss 5H, 36
Federal Court Rules2011 (Cth) rr 36.03, 36.05
Cases cited: Abdel-Hady v Minister for Immigration and Border Protection [2018] FCAFC 164
BUD17 v Minister for Home Affairs [2018] FCAFC 140
DIR16 v Minister for Immigration and Border Protection [2018] FCCA 992
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, (2004) 238 FCR 588
Date of hearing: 19 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr K Eskerie of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 837 of 2018 BETWEEN: DIR16
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
FLICK J
DATE OF ORDER:
4 DECEMBER 2018
THE COURT ORDERS THAT:
1.The Application for an Extension of Time is refused.
2.The proceeding is dismissed.
3.The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
The Applicant in the present proceeding, identified by the pseudonym DIR16, is a citizen of Sri Lanka. He was born in 1986 and lived in India from 2008 to 2011. He returned to Sri Lanka in 2011
The Applicant arrived in Australia as an unauthorised maritime arrival in September 2012. He initially lodged an application for a Protection visa, but that application was invalid. He then applied for a Safe Haven Enterprise (subclass 790) visa in December 2015. His protection claims were set out in a Statutory Declaration originally prepared in September 2013 in support of the Protection visa application and apparently also relied on in support of his Safe Haven Enterprise visa application.
The Applicant attended an interview in April 2016 with his allocated “case officer”. A “post interview submission” was sent to the case officer in April 2016. The application was rejected in August 2016 by a delegate of the Minister for Immigration and Border Protection (the “delegate”). The matter was then referred to the Immigration Assessment Authority (the “Authority”). A submission in support of the review was sent by email to the Authority in August 2016. In October 2016, the Authority concluded that…
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- Case
- [2018] FCA 1935
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the proposed grounds of appeal had any merit and whether the application for an extension of time should be granted. The court also needed to consider whether the delay in filing the appeal was justified and whether the proposed grounds of appeal had any prospects of success.
The court found that the proposed grounds of appeal were without merit. The court observed that the primary judge had carefully considered the findings made by the authority and cross-referenced them in the decision. The court also found that the delay in filing the appeal was short and that no prejudice had been claimed. However, the court found that neither of the proposed grounds of appeal had any prospects of success. Consequently, the court refused the application for an extension of time.
The court dismissed the proceeding and ordered that the applicant pay the costs of the first respondent, either as agreed or assessed. The court's decision was based on the findings that the proposed grounds of appeal were without merit and that the delay in filing the appeal was not justified. The court also found that the applicant had not demonstrated that the proposed grounds of appeal had any prospects of success. The court's decision was in line with the Federal Court Rules 2011, which govern the entry of orders.
Orders
Orders of the court
1. The Application for an Extension of Time is refused.
2. The proceeding is dismissed.
3. The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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