BWL16 v Minister for Immigration and Border Protection [2017] FCA 628

BWL16 v Minister for Immigration and Border Protection [2017] FCA 628

No appealable error was shown. The appellant herself had advanced to the Tribunal that Mr Humala's presidency would end in 2016 and had given evidence about why she feared harm after that event. The June 2016 news item and statements that Mr Humala would be replaced, that he was constitutionally barred from consecutive terms, and that Mr Kuczynski would be the new President were confirmatory or incidental, not information that rejected, denied or undermined the appellant's protection claims. Section 424A was therefore not engaged, leave to amend to add that ground was refused, and no breach of ss 425 or 422B(3) was established.

Jurisdiction
Australia
Judgment Date
02 June 2017
Procedural Posture
Migration Appeal Concerning Refusal of Protection (class Xa) Visas / Appeal From Federal Circuit Court Judgment Dismissing Amended Application for Judicial Review; Application for Leave to Amend Notice of Appeal
Outcome
Leave to amend the notice of appeal refused; appeal dismissed with costs.
Legal Topics
['protection Visa Refusal' 'judicial Review' 'natural Justice Hearing Rule' 'disclosure of Information Under S 424 A' 'post Hearing Country Information']
['migration' 'administrative Law'] ['protection Visa Refusal' 'judicial Review' 'natural Justice Hearing Rule' 'disclosure of Information Under S 424 A' 'post Hearing Country Information']

Case Brief

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Procedural Posture

Migration Appeal Concerning Refusal of Protection (class Xa) Visas / Appeal From Federal Circuit Court Judgment Dismissing Amended Application for Judicial Review; Application for Leave to Amend Notice of Appeal

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred in rejecting the claim that the Tribunal breached ss 422B(3) and 425 of the Migration Act 1958 (Cth) by relying on post-hearing information about the Peruvian presidential election without putting it to the appellant for comment.' 'Whether leave should be granted to amend the notice of appeal to allege that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth).' 'Whether the information that Mr Humala would cease to be President of Peru in 2016 and be replaced by Mr Kuczynski was information that would be the reason, or part of the reason, for affirming the decision under review.']

Ratio Decidendi

No appealable error was shown. The appellant herself had advanced to the Tribunal that Mr Humala's presidency would end in 2016 and had given evidence about why she feared harm after that event. The June 2016 news item and statements that Mr Humala would be replaced, that he was constitutionally barred from consecutive terms, and that Mr Kuczynski would be the new President were confirmatory or incidental, not information that rejected, denied or undermined the appellant's protection claims. Section 424A was therefore not engaged, leave to amend to add that ground was refused, and no breach of ss 425 or 422B(3) was established.

Court Disposition

Leave to amend the notice of appeal refused; appeal dismissed with costs.

Orders

  • ['Leave to amend the notice of appeal be refused.' 'The appeal be dismissed.' "The appellants pay the first respondent's costs."]