Kassem v Minister for Home Affairs [2019] FCA 244

Kassem v Minister for Home Affairs [2019] FCA 244

Leave to rely on the amended notice of appeal was granted because the fraud-related issue had been raised before the primary Judge, the appellants' original grounds raised the migration agent's conduct, the appellants later obtained pro bono counsel and no prejudice to the Minister was shown. Leave to rely on the additional affidavits was refused because, although the proposed evidence was relevant to alleged jurisdictional error and might be significant if accepted, it concerned serious allegations of fraud requiring examination and testing in a trial, which is not the function of an appellate court.

Jurisdiction
Australia
Judgment Date
27 February 2019
Procedural Posture
Appeal From Federal Circuit Court Proceedings Involving Judicial Review of an Administrative Appeals Tribunal Migration Decision / Interlocutory Applications in the Appeal for Leave to Amend the Notice of Appeal and to Adduce Fresh Evidence; Appeal Allowed by Consent and Remitted
Outcome
Leave to amend the notice of appeal granted; leave to adduce the affidavit evidence refused; appeal allowed by consent and remitted to the primary Judge for rehearing and determination of whether the Tribunal's functions had been stultified by migration agent fraud.
Legal Topics
['leave to Amend Notice of Appeal' 'fresh Evidence on Appeal' 'jurisdictional Error' 'migration Agent Fraud' 'constructive Non Exercise of Jurisdiction' 'pro Bono Representation' 'remittal']
['practice and Procedure' 'administrative Law' 'migration Law'] ['leave to Amend Notice of Appeal' 'fresh Evidence on Appeal' 'jurisdictional Error' 'migration Agent Fraud' 'constructive Non Exercise of Jurisdiction' 'pro Bono Representation' 'remittal']

Case Brief

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Procedural Posture

Appeal From Federal Circuit Court Proceedings Involving Judicial Review of an Administrative Appeals Tribunal Migration Decision / Interlocutory Applications in the Appeal for Leave to Amend the Notice of Appeal and to Adduce Fresh Evidence; Appeal Allowed by Consent and Remitted

Legal Issues

  1. 1 ['Whether the appellants should be granted leave to rely on the amended notice of appeal filed 7 December 2018.' 'Whether the appellants should be granted leave under s 27 of the Federal Court of Australia Act 1976 (Cth) to rely on further affidavit evidence in the appeal.' "Whether allegations that the Tribunal's processes were subverted by migration agent fraud should be examined and tested in the appellate court or remitted for determination at first instance."]

Ratio Decidendi

Leave to rely on the amended notice of appeal was granted because the fraud-related issue had been raised before the primary Judge, the appellants' original grounds raised the migration agent's conduct, the appellants later obtained pro bono counsel and no prejudice to the Minister was shown. Leave to rely on the additional affidavits was refused because, although the proposed evidence was relevant to alleged jurisdictional error and might be significant if accepted, it concerned serious allegations of fraud requiring examination and testing in a trial, which is not the function of an appellate court.

Court Disposition

Leave to amend the notice of appeal granted; leave to adduce the affidavit evidence refused; appeal allowed by consent and remitted to the primary Judge for rehearing and determination of whether the Tribunal's functions had been stultified by migration agent fraud.

Orders

  • ['The Appellants be granted leave to rely on the amended notice of appeal filed 7 December 2018.' 'The Appellants be refused leave to rely on the affidavit of Tanja Kassem filed 7 December 2018 and the affidavit of Mahmoud Kassem filed 7 December 2018.' "The appeal be allowed, on the basis that while this was...