BMY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1609

BMY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1609

Leave to appeal was refused because the applicants did not show that the Federal Circuit Court's judgment was attended by sufficient doubt. The grounds of judicial review did not reveal jurisdictional error in the Tribunal's decision: the Tribunal considered the claims made, the applicants had accepted they did not meet the protection criteria, the claimed relocation and adjustment difficulties did not engage the criteria for a protection visa, the bare political-situation assertion did not require further analysis, and the absence of Ministerial intervention was irrelevant to jurisdictional error.

Jurisdiction
Australia
Judgment Date
15 December 2021
Procedural Posture
Migration Application for Leave to Appeal From Dismissal of Judicial Review of Administrative Appeals Tribunal Decision Affirming Refusal of Protection Visa / Application for Leave to Appeal in the Federal Court of Australia
Outcome
Application for leave to appeal dismissed with costs fixed at $4,000.
Legal Topics
['protection Visa' 'judicial Review' 'jurisdictional Error' 'leave to Appeal' 'ministerial Intervention' 'serious Harm' 'significant Harm' 'well Founded Fear of Persecution']
['migration' 'administrative Law'] ['protection Visa' 'judicial Review' 'jurisdictional Error' 'leave to Appeal' 'ministerial Intervention' 'serious Harm' 'significant Harm' 'well Founded Fear of Persecution']

Case Brief

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Procedural Posture

Migration Application for Leave to Appeal From Dismissal of Judicial Review of Administrative Appeals Tribunal Decision Affirming Refusal of Protection Visa / Application for Leave to Appeal in the Federal Court of Australia

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the Federal Circuit Court's judgment dismissing the applicants' judicial review application." "Whether the Tribunal's decision was affected by jurisdictional error by failing to consider claimed harm, including harm associated with return to South Korea, the applicants' children, and the political situation in South Korea." "Whether the lack of Ministerial intervention was relevant to jurisdictional error in the Tribunal's decision." 'Whether difficulties in relocation and adjustment to life in South Korea amounted to serious harm, significant harm, or persecution under the Migration Act 1958 (Cth).']

Ratio Decidendi

Leave to appeal was refused because the applicants did not show that the Federal Circuit Court's judgment was attended by sufficient doubt. The grounds of judicial review did not reveal jurisdictional error in the Tribunal's decision: the Tribunal considered the claims made, the applicants had accepted they did not meet the protection criteria, the claimed relocation and adjustment difficulties did not engage the criteria for a protection visa, the bare political-situation assertion did not require further analysis, and the absence of Ministerial intervention was irrelevant to jurisdictional error.

Court Disposition

Application for leave to appeal dismissed with costs fixed at $4,000.

Orders

  • ['The application for leave to appeal filed on 22 November 2019 be dismissed.' "Pursuant to r 40.02 of the Federal Court Rules 2011 (Cth), the applicants pay the first respondent's costs fixed in the sum of $4,000."]