DQU16 v Minister for Home Affairs

The applicants, DQU16, along with two other applicants, sought an extension of time to appeal a decision of the Federal Circuit Court concerning the refusal of their applications for temporary protection visas. The applicants argued that the Immigration Assessment Authority had erred in its consideration of the complementary protection criterion, specifically by failing to apply certain principles correctly. The applicants were represented by counsel, and the Minister for Home Affairs opposed the application on the grounds of untimeliness and lack of merit.

The central legal issue before the court was whether the applicants could be granted an extension of time to appeal the decision of the Federal Circuit Court. The applicants contended that the Authority had erred by not applying certain principles to their consideration of the complementary protection criterion under s 36(2)(aa) of the Migration Act 1958 (Cth). The court needed to determine if this error was a jurisdictional one and if the proposed ground of appeal was arguable. Additionally, the court considered whether the applicants had a reasonable explanation for the delay in filing their notice of appeal.

The court held that the proposed sixth ground of appeal, concerning the Authority's failure to apply the principles from S395 to the complementary protection criterion, was arguable. The court was prepared to grant an extension of time to file the notice of appeal if it was confined to this single ground. However, the court was not prepared to grant an extension for any other ground. The court noted that if the proposed ground had not been raised before the primary judge, the applicants would need to seek leave from the appellate court to rely upon it. The court also expressed a preference for the applicants to be represented by the same counsel and issued a pro bono referral certificate for the appeal.

The court made several orders to facilitate the appeal process. The time for filing the appeal was extended to 21 December 2018, provided that the notice of appeal was confined to the specified ground. The costs of the application for an extension of time were reserved. The applicants were required to file and serve a notice of appeal by 4pm on 21 December 2018. The appeal was to be listed for hearing in the next available Full Court and Appellate Sittings of the Court in Sydney. Detailed procedural timelines were set for the exchange of outlines of submissions, lists of authorities and legislation, and the preparation of the appeal book. The court emphasised the importance of adhering to these timelines and specified the formatting requirements for the submissions.