EAS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1159

Federal Court of Australia

EAS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1159 Appeal from: EAS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2545

File number(s): SAD 155 of 2020

Judgment of: O'BRYAN J

Date of judgment: 28 September 2023

Catchwords: MIGRATION – application for extension of time to appeal from decision of Federal Circuit Court dismissing application for review of Administrative Appeals Tribunal decision not to grant applicant a protection visa – principles relevant to leave to raise a fresh ground of appeal – whether Tribunal's findings regarding the risk of harm to the applicant on return to country of origin were irrational and unsupported by the available evidence – whether the Tribunal misapplied the "real chance" test – whether the Tribunal overlooked or failed to have regard to evidence given by the applicant to the Minister's delegate – whether the Tribunal fell into jurisdictional error – no error in Tribunal's reasoning – appeal dismissed

Legislation: Constitution, s 75(v) Federal Court of Australia Act 1976 (Cth), s 24 Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 65, Pt 7, ss 418(3), 476 Federal Court Rules 2011 (Cth), rr 36.03, 36.05, 36.57

Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 CFB16 v Minister for Home Affairs [2019] FCA 1415 CGA15 v Minister for Home Affairs (2019) 268 FCR 362 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 CHP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1818 Coulton v Holcombe (1986) 162 CLR 1 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 EAS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCCA 2545 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 O'Brien v Komesaroff (1982) 150 CLR 310 Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304 Uolilo v Minister for Home Affairs [2021] FCAFC 138 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 Water Board v Moustakas (1988) 180 CLR 491