ALP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 816

ALP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 816

The primary judge erred in refusing leave to amend because proposed ground 1 of the amended application raised an arguable case for relief. Since that ground was arguable, the Federal Circuit Court should not have been satisfied that there was no arguable case and should not have dismissed the application under r 44.12. The proper course was to grant leave to appeal, set aside the Federal Circuit Court orders, and remit the matter for determination according to law.

Jurisdiction
Australia
Judgment Date
30 June 2021
Procedural Posture
Migration Application for Leave to Appeal From Federal Circuit Court Judicial Review Proceeding Concerning Refusal of Protection Visa / Application for Extension of Time and Leave to Appeal From Interlocutory Summary Dismissal Under R 44.12 of the Federal Circuit Court Rules 2001 (cth)
Outcome
Appeal dismissed as incompetent; extension of time effectively granted; leave to appeal granted; appeal allowed; Federal Circuit Court orders set aside; matter remitted to the Federal Circuit Court.
Legal Topics
['protection Visa' 'jurisdictional Error' 'federal Circuit Court Show Cause Hearing' 'leave to Amend' 'interlocutory Appeal' 'real Chance of Persecution' 'significant Harm' 'relocation Within Receiving Country']
['migration' 'administrative Law' 'appellate Procedure' 'judicial Review'] ['protection Visa' 'jurisdictional Error' 'federal Circuit Court Show Cause Hearing' 'leave to Amend' 'interlocutory Appeal' 'real Chance of Persecution' 'significant Harm' 'relocation Within Receiving Country']

Case Brief

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Procedural Posture

Migration Application for Leave to Appeal From Federal Circuit Court Judicial Review Proceeding Concerning Refusal of Protection Visa / Application for Extension of Time and Leave to Appeal From Interlocutory Summary Dismissal Under R 44.12 of the Federal Circuit Court Rules 2001 (cth)

Legal Issues

  1. 1 ['Whether the appeal from the Federal Circuit Court was incompetent because the dismissal under r 44.12 was interlocutory and leave was required.' 'Whether time should be extended to allow the application for leave to appeal to be brought.' 'Whether the proposed amended application before the Federal Circuit Court raised an arguable ground of review such that leave to amend should have been granted.' 'Whether proposed ground 1 was arguable on the basis that the Tribunal allegedly failed to consider whether the general low risk of sectarian violence to Shias outside Kurram Agency nevertheless amounted to a real chance of serious harm throughout Pakistan.' 'Whether the Federal Circuit Court erred by refusing leave to amend and dismissing the application under r 44.12.']

Ratio Decidendi

The primary judge erred in refusing leave to amend because proposed ground 1 of the amended application raised an arguable case for relief. Since that ground was arguable, the Federal Circuit Court should not have been satisfied that there was no arguable case and should not have dismissed the application under r 44.12. The proper course was to grant leave to appeal, set aside the Federal Circuit Court orders, and remit the matter for determination according to law.

Court Disposition

Appeal dismissed as incompetent; extension of time effectively granted; leave to appeal granted; appeal allowed; Federal Circuit Court orders set aside; matter remitted to the Federal Circuit Court.

Orders

  • ['The appeal be dismissed as incompetent.' 'Leave be granted to appeal and the appeal be allowed.' 'The orders made by the Federal Circuit Court on 12 November 2020 be set aside and the matter be remitted to the Federal Circuit Court to thereafter be determined according to law.' 'The costs of the proceeding to date...