AXE15 v Minister for Immigration and Border Protection [2018] FCA 1809

AXE15 v Minister for Immigration and Border Protection [2018] FCA 1809

Leave to raise Ground 2 was refused because the unchallenged affidavit and departmental records established that no s 438 certificate had ever been issued in relation to the appellant's matters, so the alleged jurisdictional error was wholly theoretical and had no reasonable prospect of success. With no viable ground of appeal, the appeal was dismissed and costs followed the event.

Jurisdiction
Australia
Judgment Date
07 November 2018
Procedural Posture
Migration Appeal From the Federal Circuit Court / Appeal in the Federal Court From Dismissal of Judicial Review Application; Application for Leave to Amend Notice of Appeal
Outcome
Leave to amend the notice of appeal to add Ground 2 was refused; the appeal was dismissed; the appellant was ordered to pay the first respondent's costs.
Legal Topics
['protection Visa Refusal' 'judicial Review' 'jurisdictional Error' 'section 438 Certificate' 'leave to Amend Notice of Appeal' 'costs']
['migration' 'administrative Law'] ['protection Visa Refusal' 'judicial Review' 'jurisdictional Error' 'section 438 Certificate' 'leave to Amend Notice of Appeal' 'costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Migration Appeal From the Federal Circuit Court / Appeal in the Federal Court From Dismissal of Judicial Review Application; Application for Leave to Amend Notice of Appeal

Legal Issues

  1. 1 ['Whether the appellant should be granted leave to amend the notice of appeal to raise Ground 2 concerning an alleged invalid s 438 certificate.' "Whether any jurisdictional error arose from the Tribunal's alleged failure to disclose the existence of a certificate issued under s 438 of the Migration Act 1958 (Cth)." 'Whether the appeal should be adjourned pending High Court determination of appeals concerning Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194.' "Whether the appellant should pay the first respondent's costs."]

Ratio Decidendi

Leave to raise Ground 2 was refused because the unchallenged affidavit and departmental records established that no s 438 certificate had ever been issued in relation to the appellant's matters, so the alleged jurisdictional error was wholly theoretical and had no reasonable prospect of success. With no viable ground of appeal, the appeal was dismissed and costs followed the event.

Court Disposition

Leave to amend the notice of appeal to add Ground 2 was refused; the appeal was dismissed; the appellant was ordered to pay the first respondent's costs.

Orders

  • ['Leave to amend the notice of appeal, so as to add Ground 2, insofar as it is necessary, be refused.' 'The appeal be dismissed.' "The appellant pay the first respondent's costs, of and incidental to the appeal, to be taxed if not agreed."]