Mzarv v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

MZARV v Minister for Home Affairs [2018] FCA 809

Appeal from: Application for extension of time: MZARV v Minister for Immigration & Anor [2016] FCCA 2898
File number: VID 58 of 2018
Judge: BROMBERG  J
Date of judgment: 17 May 2018
Catchwords: MIGRATION – application to extend time to file notice of appeal – whether a reasonable prospect of establishing that the Tribunal fell into jurisdictional error by failing to consider an integer of the applicant’s claim – application granted
Legislation: Migration Act 1958 (Cth)
Cases cited: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Date of hearing: 17 May 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 16
Counsel for the Applicant: Ms R Germov
Solicitor for the Applicant: WLW Migration Lawyers
Counsel for the First Respondent: Ms C Symons
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The second respondent filed a submitting notice

ORDERS

VID 58 of 2018
BETWEEN:

MZARV

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRARIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BROMBERG  J

DATE OF ORDER:

17 MAY 2018

THE COURT ORDERS THAT:

1.The Applicant’s application for an extension of time dated 29 January 2018 be granted.

2.Costs of the application be reserved.

3.Time be extended to 24 May 2018 for the Applicant to file and serve a notice of appeal in the form of, or substantially in the form of, the document titled “Draft Notice of Appeal from the Federal Circuit Court of Australia”.

4.On or before 5 June 2018 the Applicant prepare, file and serve an appeal book.

5.On or before 5 June 2018 the Applicant file and serve his outline of submissions.

6.On or before 19 June 2018 the First Respondent file and serve his outline of submissions.

7.On or before the day 7 days prior to the appeal the parties file and serve lists of authorities.

8.The appeal be listed for hearing on an estimate of half a day on a date to be fixed in the Court’s appellate sittings.

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


REASONS FOR JUDGMENT

BROMBERG J:

  1. The applicant seeks an extension of time to file an appeal in this Court from a decision of the Federal Circuit Court of Australia published as MZARV v Minister for Immigration & Anor [2016] FCCA 2898. By that decision, the primary judge ordered that the applicant's application for judicial review of a decision of what was at the time the Refugee Review Tribunal, and what is now the Administrative Appeals Tribunal (“the Tribunal”), be dismissed.  The Tribunal had earlier affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the applicant a Protection (Class XA) visa (“visa”) under s 65 of the Migration Act 1958 (Cth).

  2. The applicant is a male…

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Details
Case
[2018] FCA 809
Decision Date

CaseChat Overview and Summary

In Mzarv v Minister for Home Affairs, the applicant sought an extension of time to lodge a notice of appeal against a decision made by the Administrative Appeals Tribunal (AAT). The dispute centred on the applicant's eligibility for a visa and the subsequent refusal by the AAT to grant him a visa. The Federal Circuit Court of Australia was tasked with determining whether the applicant's application for an extension of time should be granted.

The primary legal issue before the court was whether the applicant had a reasonable prospect of establishing that the AAT had failed to consider an essential aspect of the applicant's claim, thereby committing a jurisdictional error. The court also had to consider the applicant's prospects of success on the appeal, as well as the balance of convenience.

The court found that the applicant had a reasonable prospect of establishing a jurisdictional error by the AAT. The court emphasised the importance of considering all relevant matters in migration cases and noted that the AAT had indeed overlooked a significant element of the applicant's claim. Furthermore, the court was satisfied that the applicant had a reasonable chance of success on the appeal. The court also considered the balance of convenience and determined that granting the extension would not unduly prejudice the respondent. Consequently, the court granted the application and ordered an extension of time for the applicant to lodge his notice of appeal and prepare the necessary documents for the appeal.

Orders

Orders of the court

1. The Applicant’s application for an extension of time dated 29 January 2018 be granted.

2. Costs of the application be reserved.

3. Time be extended to 24 May 2018 for the Applicant to file and serve a notice of appeal in the form of, or substantially in the form of, the document titled “Draft Notice of Appeal from the Federal Circuit Court of Australia”.

4. On or before 5 June 2018 the Applicant prepare, file and serve an appeal book.

5. On or before 5 June 2018 the Applicant file and serve his outline of submissions.

6. On or before 19 June 2018 the First Respondent file and serve his outline of submissions.

7. On or before the day 7 days prior to the appeal the parties file and serve lists of authorities.

8. The appeal be listed for hearing on an estimate of half a day on a date to be fixed in the Court’s appellate sittings.

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

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Ratio Decidendi

Legal Principle Established

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