Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213

Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213

The appellants should be granted leave to amend their notice of appeal to raise as a ground that the Federal Circuit Court erred by not deciding, as a jurisdictional fact, whether third party fraud invalidated the visa application or process. The appeal should be allowed, orders of the Federal Circuit Court set aside, and the matter remitted for determination in accordance with the law and the principles stated in recent Full Court decisions on third party fraud.

Parties
First Appellant: Shramika Maharjan; Second Appellant: Raju Maharjan; Third Appellant: Sarad Maharjan; First Respondent: Minister for Immigration and Border Protection; Second Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
15 December 2017
Procedural Posture
Appeal / Full Court Judgment on Appeal From Federal Circuit Court; Consideration of Application to Amend Notice of Appeal; Determination of Appeal
Outcome
Appeal allowed (by majority); matter remitted to the Federal Circuit Court for determination according to law; costs ordered in favour of appellants for the appeal; leave granted to amend notice of appeal.
Legal Topics
Visa Application Validity, Third Party Fraud, Judicial Review, Procedural Fairness
Migration Law Administrative Law Visa Application Validity Third Party Fraud Judicial Review Procedural Fairness

Case Brief

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Parties

Shramika Maharjan

First Appellant

Raju Maharjan

Second Appellant

Sarad Maharjan

Third Appellant

Minister for Immigration and Border Protection

First Respondent

Administrative Appeals Tribunal

Second Respondent

Procedural Posture

Appeal / Full Court Judgment on Appeal From Federal Circuit Court; Consideration of Application to Amend Notice of Appeal; Determination of Appeal

Legal Issues

  1. 1 Whether the Federal Circuit Court erred by not deciding the jurisdictional fact of whether fraud perpetrated on a visa applicant invalidated the visa application or process
  2. 2 Whether leave should be granted to amend notice of appeal to raise a new ground regarding third party fraud

Ratio Decidendi

The appellants should be granted leave to amend their notice of appeal to raise as a ground that the Federal Circuit Court erred by not deciding, as a jurisdictional fact, whether third party fraud invalidated the visa application or process. The appeal should be allowed, orders of the Federal Circuit Court set aside, and the matter remitted for determination in accordance with the law and the principles stated in recent Full Court decisions on third party fraud.

Court Disposition

Appeal allowed (by majority); matter remitted to the Federal Circuit Court for determination according to law; costs ordered in favour of appellants for the appeal; leave granted to amend notice of appeal.

Orders

  • The appellants have leave to file and rely upon the amended notice of appeal dated 8 August 2017.
  • The appeal be allowed.