Background
The applicants, an Indian family, applied for Protection (Class XA) (subclass 866) visas in March 2018. The principal applicant claimed he faced harm in India after lending money to a person who later died by suicide, allegedly naming him in a suicide note. He said the deceased person’s family attacked him, criminal charges followed, and police failed to protect him.
A ministerial delegate refused the visa applications on 15 October 2019 and emailed the decision to the applicants’ nominated address that day. The applicants sought Tribunal review on 25 November 2019, after the 28-day review period had expired. The Tribunal held it lacked jurisdiction to review the refusal. Their later judicial-review application was summarily dismissed, and a Federal Circuit and Family Court judge refused to extend time for them to seek review of that dismissal.
The Court’s Holding
Justice Cheeseman refused leave to appeal from the interlocutory extension-of-time decision. The applicants had to show an arguable discretionary error by the primary judge and sufficient doubt to justify appellate reconsideration, with substantial injustice if leave were refused. They did neither.
The Court held that the Tribunal review application was lodged out of time and that the Tribunal had no power to extend the prescribed period. Its merits-review jurisdiction was therefore never engaged. The Tribunal consequently had no obligation or power to assess the applicants’ protection claims, alleged persecution, or risk of harm. The applicants also gave no explanation for their 15-day delay in seeking review of the Registrar’s summary-dismissal decision. The first and second applicants were ordered to pay the Minister’s costs.
Key Takeaways
- A tribunal cannot consider the merits of a protection claim when a statutory review application is late and its jurisdiction has not been engaged.
- A complaint that the tribunal ignored substantive claims cannot establish jurisdictional error where the tribunal lacked power to decide those claims.
- Leave to appeal from an interlocutory discretionary decision requires an arguable appealable error, not simply disagreement with the underlying merits.
Why It Matters
The decision underscores the decisive effect of migration review time limits. Once the Tribunal’s jurisdiction is not engaged by a timely application, later proceedings cannot use the substantive strength of a protection claim to overcome that threshold defect.
It also illustrates that applicants seeking an extension of time must address the delay and identify a concrete error in the decision under challenge. Repeating merits-based complaints will not ordinarily justify appellate intervention.