FMF17 v Minister for Home Affairs

FEDERAL COURT OF AUSTRALIA

FMF17 v Minister for Home Affairs [2018] FCA 1906

Appeal from:

Application for extension of time: FMF17 v Minister for Immigration & Anor [2018] FCCA 1300

File number:

NSD 975 of 2018

Judge:

RANGIAH J

Date of judgment:

30 November 2018

Catchwords:

MIGRATION – application for extension of time to file an application for leave to appeal – where Federal Circuit Court dismissed a judicial review application of Immigration Assessment Authority decision – whether proposed appeal has any reasonable prospect of success – whether Immigration Assessment Authority considered all relevant information – whether Immigration Assessment Authority’s decision was unreasonable and irrational – where there was no error – application dismissed

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr 44.12

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Federal Court Rules 2011 (Cth) rr 35.13 and 35.14

Migration Act 1958 (Cth) ss 5H(1), 36(2)(a), 36(2)(aa) and 36(2A)

Cases cited:

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Date of hearing:

13 November 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

38

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the First Respondent:

Mr L Leerdam

Solicitor for the First Respondent:

DLA Piper

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

NSD 975 of 2018

BETWEEN:

FMF17

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	RANGIAH J
DATE OF ORDER:	30 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The application for an extension of time to file an application for leave to appeal is dismissed.

2.The applicant pay the first respondent’s costs of the application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1. This is an application for an extension of time to file an application for leave to appeal against a judgment of the Federal Circuit Court of Australia delivered on 22 May 2018. The application is brought under r 35.14 of the Federal Court Rules 2011 (Cth).

2. The Federal Circuit Court dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). That rule provides that at a hearing of an application for an order to show cause, the Court may, if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application. Rule 44.12(2) states that, to avoid doubt, such a dismissal is interlocutory.

3. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from an interlocutory judgment of the Federal Circuit Court unless the Court or a judge gives leave to appeal. Under r 35.13 of the Federal Court Rules, an application for leave to appeal must be filed within…