AQP16 v Minister for Immigration and Border Protection [2018] FCA 1880

AQP16 v Minister for Immigration and Border Protection [2018] FCA 1880

The appeal was dismissed because ground 1 was a new ground not raised before the primary judge, was not expedient in the interests of justice to entertain, and in any event misconstrued the Tribunal's reasons and lacked merit. Ground 2 failed because the primary judge did consider the counsel-prepared submissions and proposed amended s 424A ground, and correctly refused leave to rely on that ground given its lack of merit and the significant unexplained delay. No jurisdictional error or appealable error was shown.

Jurisdiction
Australia
Judgment Date
30 November 2018
Procedural Posture
Migration Appeal From Orders of the Federal Circuit Court Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection Visa / Appeal
Outcome
Appeal dismissed; leave to rely upon ground 1 refused; appellant ordered to pay the first respondent's costs fixed at $3,500.
Legal Topics
['protection Visa Refusal' 'administrative Appeals Tribunal Review' 'jurisdictional Error' 'credibility Findings' 'section 424 a Migration Act Disclosure Obligations' 'bias' 'leave to Raise New Ground on Appeal' 'costs']
['migration' 'administrative Law' 'judicial Review'] ['protection Visa Refusal' 'administrative Appeals Tribunal Review' 'jurisdictional Error' 'credibility Findings' 'section 424 a Migration Act Disclosure Obligations' 'bias' 'leave to Raise New Ground on Appeal' 'costs']

Case Brief

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Procedural Posture

Migration Appeal From Orders of the Federal Circuit Court Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection Visa / Appeal

Legal Issues

  1. 1 ["Whether the appellant should be granted leave to rely on a ground of appeal not raised before the primary judge concerning the Tribunal's treatment of her prospective spouse visa application." "Whether the Tribunal misconstrued or misunderstood the appellant's circumstances or made adverse credibility findings on a wrong basis." "Whether the primary judge failed to consider written submissions prepared by the appellant's former counsel because they were lodged late." 'Whether the primary judge erred in refusing leave to rely on a proposed s 424A ground of review.' "Whether any jurisdictional error was shown in the Tribunal's decision or in the Federal Circuit Court's dismissal of judicial review."]

Ratio Decidendi

The appeal was dismissed because ground 1 was a new ground not raised before the primary judge, was not expedient in the interests of justice to entertain, and in any event misconstrued the Tribunal's reasons and lacked merit. Ground 2 failed because the primary judge did consider the counsel-prepared submissions and proposed amended s 424A ground, and correctly refused leave to rely on that ground given its lack of merit and the significant unexplained delay. No jurisdictional error or appealable error was shown.

Court Disposition

Appeal dismissed; leave to rely upon ground 1 refused; appellant ordered to pay the first respondent's costs fixed at $3,500.

Orders

  • ['Leave to rely upon ground 1 in the undated notice of appeal filed on 24 May 2018 be refused.' 'The appeal be dismissed.' "The appellant pay the first respondent's costs fixed in the sum of $3,500."]