AAW16 v Minister for Immigration and Border Protection [2017] FCA 49

AAW16 v Minister for Immigration and Border Protection [2017] FCA 49

The proposed appeal had no reasonable prospect of success. The fresh evidence concerned facts and circumstances that did not exist when the Tribunal made its decision and therefore could not establish jurisdictional error by the Tribunal; the primary judge did not deny procedural fairness by refusing leave to rely on that ground or evidence. The Tribunal did not require or expect the applicant to be discreet about his sexuality, but found on the applicant's own evidence that he was then engaged only in heterosexual activity and would willingly disengage from homosexual activity if returned to Egypt. The relocation challenge either failed for the same reason or impermissibly attacked...

Jurisdiction
Australia
Judgment Date
03 February 2017
Procedural Posture
Migration Application for Extension of Time to File a Notice of Appeal and Originating Application for Relief Under S 39 B of the Judiciary Act 1903 (cth) / Federal Court Application From Federal Circuit Court Orders Dismissing Judicial Review of the Tribunal's Affirmation of Refusal of a Protection Visa
Outcome
Application for extension of time dismissed with costs; originating application for relief under s 39B dismissed with costs.
Legal Topics
['protection Visa' 'complementary Protection' 'judicial Review' 'jurisdictional Error' 'extension of Time to Appeal' 'fresh Evidence' 'procedural Fairness' 'relocation' 'sexual Orientation and Discretion Reasoning']
['migration Law' 'administrative Law' 'constitutional Law and Human Rights'] ['protection Visa' 'complementary Protection' 'judicial Review' 'jurisdictional Error' 'extension of Time to Appeal' 'fresh Evidence' 'procedural Fairness' 'relocation' 'sexual Orientation and Discretion Reasoning']

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Procedural Posture

Migration Application for Extension of Time to File a Notice of Appeal and Originating Application for Relief Under S 39 B of the Judiciary Act 1903 (cth) / Federal Court Application From Federal Circuit Court Orders Dismissing Judicial Review of the Tribunal's Affirmation of Refusal of a Protection Visa

Legal Issues

  1. 1 ['Whether an extension of time should be granted to file a notice of appeal from the Federal Circuit Court decision.' "Whether fresh evidence of events occurring after the Tribunal's decision could support a ground of judicial review or establish jurisdictional error by the Tribunal." 'Whether the primary judge denied procedural fairness by refusing leave to rely on the fresh evidence ground and associated evidence.' 'Whether the Tribunal erred by requiring or expecting the applicant to act discreetly about homosexual or bisexual activity if returned to Egypt.' "Whether the Tribunal's finding that the applicant could safely and reasonably relocate within Egypt lacked an evident and intelligible justification or otherwise involved jurisdictional error."]

Ratio Decidendi

The proposed appeal had no reasonable prospect of success. The fresh evidence concerned facts and circumstances that did not exist when the Tribunal made its decision and therefore could not establish jurisdictional error by the Tribunal; the primary judge did not deny procedural fairness by refusing leave to rely on that ground or evidence. The Tribunal did not require or expect the applicant to be discreet about his sexuality, but found on the applicant's own evidence that he was then engaged only in heterosexual activity and would willingly disengage from homosexual activity if returned to Egypt. The relocation challenge either failed for the same reason or impermissibly attacked...

Court Disposition

Application for extension of time dismissed with costs; originating application for relief under s 39B dismissed with costs.

Orders

  • ['The originating application dated 16 September 2016 and filed on 23 September 2016 be dismissed.' 'The application for an extension of time to file a notice of appeal dated 12 December 2016 and filed on 19 December 2016 be dismissed.' "The applicant pay the respondents' costs as taxed or agreed."]