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:
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).
The applicant is a male…
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- Case
- [2018] FCA 809
- Decision Date
CaseChat Overview and Summary
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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