ARK16 v Minister for Immigration and Border Protection [2018] FCA 825

ARK16 v Minister for Immigration and Border Protection [2018] FCA 825

Leave to rely on the amended notice of appeal was granted because it was in the administration of justice and the new procedural fairness ground had merit. The delegate materially relied on a statement from departmental records that the appellant lived with his brother and family to infer that alternative family support was available, despite the waiver application being premised on an absence of such support. Because that adverse and critical factual matter was not put to the appellant, the delegate denied procedural fairness. The Court was not satisfied that the denial could not have affected the outcome, given further information about the brother, sister and appellant might also have...

Jurisdiction
Australia
Judgment Date
04 June 2018
Procedural Posture
Migration Judicial Review Appeal / Appeal From Federal Circuit Court Orders Dismissing an Application for Judicial Review; Leave Sought to Rely on an Amended Notice of Appeal
Outcome
Appeal allowed.
Legal Topics
['waiver of Condition 8503' 'procedural Fairness' 'jurisdictional Error' 'leave to Amend Notice of Appeal' 'no Further Stay Condition']
['migration Law' 'administrative Law' 'judicial Review'] ['waiver of Condition 8503' 'procedural Fairness' 'jurisdictional Error' 'leave to Amend Notice of Appeal' 'no Further Stay Condition']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Migration Judicial Review Appeal / Appeal From Federal Circuit Court Orders Dismissing an Application for Judicial Review; Leave Sought to Rely on an Amended Notice of Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to rely on an amended notice of appeal raising procedural fairness for the first time on appeal.' 'Whether the delegate denied procedural fairness by relying on departmental records that the appellant resided with his brother and his family as a basis for finding family support was available without giving the appellant an opportunity to respond.' 'Whether the denial of procedural fairness deprived the appellant of the possibility of a different outcome.']

Ratio Decidendi

Leave to rely on the amended notice of appeal was granted because it was in the administration of justice and the new procedural fairness ground had merit. The delegate materially relied on a statement from departmental records that the appellant lived with his brother and family to infer that alternative family support was available, despite the waiver application being premised on an absence of such support. Because that adverse and critical factual matter was not put to the appellant, the delegate denied procedural fairness. The Court was not satisfied that the denial could not have affected the outcome, given further information about the brother, sister and appellant might also have...

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The orders of the Federal Circuit Court made on 15 December 2017 be set aside, and in their place order that the decision of a delegate of the first respondent made on 4 July 2016 in relation to the appellant be set aside.' 'The matter be remitted for consideration by another delegate of...