AWV18 v Minister for Home Affairs (No 2) [2019] FCA 1315

AWV18 v Minister for Home Affairs (No 2) [2019] FCA 1315

The appellants were granted leave only to amend their notice of appeal to rely on proposed ground 1, which the Minister did not oppose and which had apparently been agitated below. Leave was refused for proposed grounds 2 to 7 because none had sufficient merit to warrant being raised for the first time on appeal, no adequate explanation was given for not raising them before the Federal Circuit Court despite representation by counsel, and some grounds would prejudice the Minister by raising factual issues that could have been met with evidence below.

Jurisdiction
Australia
Judgment Date
22 August 2019
Procedural Posture
Migration Appeal From the Federal Circuit Court Concerning Judicial Review of an Immigration Assessment Authority Protection Visa Decision / Interlocutory Application for Leave to Amend the Notice of Appeal to Raise New Grounds
Outcome
Application for leave to amend allowed in part; leave granted for proposed ground 1 only and otherwise dismissed, with costs against the first and second appellants.
Legal Topics
['protection Visa' 'immigration Assessment Authority' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'amendment of Notice of Appeal' 'review Material']
['migration Law' 'administrative Law' 'judicial Review'] ['protection Visa' 'immigration Assessment Authority' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'amendment of Notice of Appeal' 'review Material']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Circuit Court Concerning Judicial Review of an Immigration Assessment Authority Protection Visa Decision / Interlocutory Application for Leave to Amend the Notice of Appeal to Raise New Grounds

Legal Issues

  1. 1 ['Whether the appellants should have leave to amend their notice of appeal to replace its grounds with proposed new grounds.' 'Whether proposed grounds 2 to 7, which were not agitated before the Federal Circuit Court, had sufficient merit to warrant leave.' 'Whether the absence of an explanation for failing to raise the proposed grounds below weighed against leave.' "Whether permitting proposed new grounds would prejudice the Minister or impermissibly turn the appeal into a first-instance review of the Authority's decision."]

Ratio Decidendi

The appellants were granted leave only to amend their notice of appeal to rely on proposed ground 1, which the Minister did not oppose and which had apparently been agitated below. Leave was refused for proposed grounds 2 to 7 because none had sufficient merit to warrant being raised for the first time on appeal, no adequate explanation was given for not raising them before the Federal Circuit Court despite representation by counsel, and some grounds would prejudice the Minister by raising factual issues that could have been met with evidence below.

Court Disposition

Application for leave to amend allowed in part; leave granted for proposed ground 1 only and otherwise dismissed, with costs against the first and second appellants.

Orders

  • ["The appellants have leave to amend their notice of appeal to replace its grounds with ground 1 of the draft amended notice of appeal exhibited to the first appellant's affidavit dated 6 August 2019." "The appellants' interlocutory application filed on 6 August 2019 is otherwise dismissed." "The first and second...