SZNJE v Minister for Immigration and Border Protection [2016] FCA 803

SZNJE v Minister for Immigration and Border Protection [2016] FCA 803

Leave to raise the first ground was refused because the argument that the Tribunal misconstrued s 36(2A) had not been raised below and had no substance. The second ground was rejected because it sought to revive an argument abandoned before the Federal Circuit Court and, in any event, the Tribunal had addressed the Appellants' claims and circumstances. The adjournment complaint also failed because the Tribunal had invited the Appellants to appear, the husband appeared by video link and the wife participated by telephone as permitted by s 429A, and there was no evidence that those means denied them a real and meaningful opportunity to give evidence and present arguments.

Jurisdiction
Australia
Judgment Date
13 July 2016
Procedural Posture
Appeal From Federal Circuit Court Dismissal of an Application for Judicial Review of a Tribunal Decision Affirming Refusal of Protection Visas / Appeal Dismissed
Outcome
The appeal is dismissed with costs.
Legal Topics
['new Arguments on Appeal' 'abandoned Grounds of Review' 'refusal of Adjournment' 'invitation to Appear Before Tribunal' 'appearance by Video Link and Telephone' 'jurisdictional Error']
['administrative Law' 'migration Law' 'practice and Procedure'] ['new Arguments on Appeal' 'abandoned Grounds of Review' 'refusal of Adjournment' 'invitation to Appear Before Tribunal' 'appearance by Video Link and Telephone' 'jurisdictional Error']

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Procedural Posture

Appeal From Federal Circuit Court Dismissal of an Application for Judicial Review of a Tribunal Decision Affirming Refusal of Protection Visas / Appeal Dismissed

Legal Issues

  1. 1 ['Whether leave should be granted to raise on appeal a new ground alleging that the Tribunal misconstrued the risk of significant harm under s.36(2A) of the Migration Act 1958.' 'Whether the Appellants should be permitted to resurrect on appeal a ground that had been abandoned before the Federal Circuit Court.' "Whether the Tribunal's refusal to further adjourn the hearing denied the Appellants a real and meaningful opportunity to appear and present evidence and arguments under s 425 of the Migration Act 1958."]

Ratio Decidendi

Leave to raise the first ground was refused because the argument that the Tribunal misconstrued s 36(2A) had not been raised below and had no substance. The second ground was rejected because it sought to revive an argument abandoned before the Federal Circuit Court and, in any event, the Tribunal had addressed the Appellants' claims and circumstances. The adjournment complaint also failed because the Tribunal had invited the Appellants to appear, the husband appeared by video link and the wife participated by telephone as permitted by s 429A, and there was no evidence that those means denied them a real and meaningful opportunity to give evidence and present arguments.

Court Disposition

The appeal is dismissed with costs.

Orders

  • ['The appeal is dismissed.' 'The Appellants are to pay the costs of the First Respondent.']