DJS16 v Minister for Immigration and Border Protection

The applicants in this matter sought an extension of time and leave to appeal a decision of the Federal Circuit Court, which dismissed their application for review of a delegate’s refusal to grant them protection visas. The respondents in the matter were the Minister for Immigration and Border Protection. The applicants’ case was that they had not been given a reasonable opportunity to present their case in the Federal Circuit Court, and that there were errors in the Court’s interpretation of the Migration Act 1958 (Cth). The applicants’ case was dismissed by the Federal Circuit Court, and they sought leave to appeal to the High Court.

The primary legal issue before the Court was whether there was sufficient doubt as to the correctness of the Federal Circuit Court’s decision to warrant the grant of leave to appeal. The Court also had to consider whether a substantial injustice would result if leave were refused. The applicants submitted that the Federal Circuit Court had erred in law and failed to take into account relevant material, and that these errors had resulted in a miscarriage of justice. The respondents submitted that the applicants’ appeal was an abuse of process and should be dismissed.

The Court was satisfied that there was a reasonable explanation for the delay in filing the application for leave to appeal, and that the applicants had acted promptly once they became aware of the Federal Circuit Court’s decision. The Court also found that there was sufficient doubt as to the correctness of the Federal Circuit Court’s decision to warrant the grant of leave to appeal. The Court was satisfied that a substantial injustice would result if leave were refused, given the seriousness of the applicants’ claims and the potential consequences of the Federal Circuit Court’s decision. Accordingly, the Court granted leave to appeal, confined the appeal to the five proposed grounds of appeal identified in the applicants’ written submissions, and ordered the applicants to file an amended notice of appeal by a specified date. The Minister’s costs of the application for leave to appeal were reserved, and the appeal was listed for hearing in February 2019. The parties were also directed to propose a timetable for the filing of an appeal book and a joint set of authorities for the appeal.