DIA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1143

DIA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1143

Leave to raise the new appeal grounds was refused because the proposed grounds had no real prospects of success. The Tribunal had made enquiries to clarify the claims, DIB18 and her migration agent did not seek to expand upon or expressly rely on the sexual abuse declaration at the hearing or in later material, and there was nothing in the record to indicate that further inquiry could have affected the outcome. The Tribunal also considered the sexual assault claim, accepted DIB18 may have been assaulted as a child, assessed her and her daughter's future risk by reference to changed personal circumstances and country information, and was not satisfied there was a real chance of sexual...

Jurisdiction
Australia
Judgment Date
28 September 2021
Procedural Posture
Migration Appeal From Federal Circuit Court of Australia Dismissal of Judicial Review Applications Concerning Administrative Appeals Tribunal Decisions Affirming Refusal of Safe Haven Enterprise Visas / Applications for Leave to Raise New Grounds on Appeal and Appeal
Outcome
Applications for leave to raise proposed grounds dismissed; appeals dismissed with costs.
Legal Topics
['safe Haven Enterprise Visa' 'protection Visa Criteria' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'migration Act S 425 Hearing Obligation' 'proper, Genuine and Realistic Consideration' 'sexual Abuse and Harassment Claims' 'family Unit Visa Claims']
['migration' 'administrative Law' 'judicial Review'] ['safe Haven Enterprise Visa' 'protection Visa Criteria' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'migration Act S 425 Hearing Obligation' 'proper, Genuine and Realistic Consideration' 'sexual Abuse and Harassment Claims' 'family Unit Visa Claims']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court of Australia Dismissal of Judicial Review Applications Concerning Administrative Appeals Tribunal Decisions Affirming Refusal of Safe Haven Enterprise Visas / Applications for Leave to Raise New Grounds on Appeal and Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to raise proposed grounds of appeal not raised before the Federal Circuit Court of Australia.' 'Whether the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) by failing to provide DIB18 a genuine opportunity to present evidence and argument about her history of sexual abuse and harassment and fears for herself and her daughter in Vietnam.' "Whether the Tribunal failed to give proper, genuine and realistic consideration to DIB18's claims concerning sexual abuse and harassment in Vietnam." "Whether any jurisdictional error affecting DIB18's claims would also vitiate the Tribunal decision concerning DIA18 because of the family unit basis of the visa claims."]

Ratio Decidendi

Leave to raise the new appeal grounds was refused because the proposed grounds had no real prospects of success. The Tribunal had made enquiries to clarify the claims, DIB18 and her migration agent did not seek to expand upon or expressly rely on the sexual abuse declaration at the hearing or in later material, and there was nothing in the record to indicate that further inquiry could have affected the outcome. The Tribunal also considered the sexual assault claim, accepted DIB18 may have been assaulted as a child, assessed her and her daughter's future risk by reference to changed personal circumstances and country information, and was not satisfied there was a real chance of sexual...

Court Disposition

Applications for leave to raise proposed grounds dismissed; appeals dismissed with costs.

Orders

  • ['The applications for leave to raise proposed grounds 2 and 3 in SAD 180 of 2020 and proposed ground 2 in SAD 179 of 2020 be dismissed.' 'The appeals be dismissed with costs.']