BAL17 v Minister for Immigration and Border Protection [2018] FCA 792

BAL17 v Minister for Immigration and Border Protection [2018] FCA 792

Leave to appeal was refused because the appellants did not demonstrate any error by the primary judge in refusing reinstatement. The primary judge correctly treated the merits of the proposed judicial review application as relevant, was entitled to find no sufficient merit where no review grounds were pleaded and no jurisdictional error in the Tribunal decision was identified, and correctly found no error in the Tribunal's treatment of internal relocation or the s 438 certificate. The proposed appeal was therefore not attended with sufficient doubt and no substantial injustice was shown.

Jurisdiction
Australia
Judgment Date
22 May 2018
Procedural Posture
Application for Leave to Appeal From Federal Circuit Court Orders Dismissing an Application for Reinstatement of an Application for Judicial Review of a Tribunal Decision Affirming Refusal of Protection Visas / Application for Leave to Appeal
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['protection Visas' 'judicial Review' 'application for Reinstatement' 'leave to Appeal' 'internal Relocation' 'non Disclosure Certificate Under S 438 of the Migration Act 1958 (cth)']
['administrative Law' 'migration Law'] ['protection Visas' 'judicial Review' 'application for Reinstatement' 'leave to Appeal' 'internal Relocation' 'non Disclosure Certificate Under S 438 of the Migration Act 1958 (cth)']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Federal Circuit Court Orders Dismissing an Application for Reinstatement of an Application for Judicial Review of a Tribunal Decision Affirming Refusal of Protection Visas / Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the notice of appeal should be treated as a combined application for leave to appeal and draft notice of appeal because the Federal Circuit Court decision was interlocutory.' "Whether the primary judge's refusal to reinstate the judicial review application was attended with sufficient doubt to warrant reconsideration on appeal." 'Whether substantial injustice would result if leave to appeal were refused.' "Whether the proposed judicial review application had sufficient merit, including by reference to the Tribunal's assessment of internal relocation in India and its treatment of a certificate issued under s 438 of the Migration Act 1958 (Cth)."]

Ratio Decidendi

Leave to appeal was refused because the appellants did not demonstrate any error by the primary judge in refusing reinstatement. The primary judge correctly treated the merits of the proposed judicial review application as relevant, was entitled to find no sufficient merit where no review grounds were pleaded and no jurisdictional error in the Tribunal decision was identified, and correctly found no error in the Tribunal's treatment of internal relocation or the s 438 certificate. The proposed appeal was therefore not attended with sufficient doubt and no substantial injustice was shown.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['The notice of appeal be treated as a combined application for leave to appeal and draft notice of appeal.' 'The application for leave to appeal be dismissed.' "The appellants pay the first respondent's costs of and incidental to the application for leave to appeal, as taxed or agreed."]