BBV16 v Minister for Immigration and Border Protection [2017] FCA 98

BBV16 v Minister for Immigration and Border Protection [2017] FCA 98

Leave to appeal was refused because the Tribunal did not ignore the applicant's claims or China's family planning policy, its findings were open on the evidence including country information about a policy change, and the proposed grounds identified no appealable error by the primary judge but instead invited impermissible merits review. Justice did not demand that leave be granted.

Jurisdiction
Australia
Judgment Date
13 February 2017
Procedural Posture
Application for Leave to Appeal From a Federal Circuit Court of Australia Decision Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection (class Xa) Visa / Application for Leave to Appeal
Outcome
The application for leave to appeal is dismissed.
Legal Topics
['protection Visa' 'refugee Criterion' 'complementary Protection Criterion' 'jurisdictional Error' 'leave to Appeal' 'impermissible Merits Review' 'china One Child Policy' 'forced Sterilisation Claim']
['migration' 'administrative Law' 'judicial Review'] ['protection Visa' 'refugee Criterion' 'complementary Protection Criterion' 'jurisdictional Error' 'leave to Appeal' 'impermissible Merits Review' 'china One Child Policy' 'forced Sterilisation Claim']

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Procedural Posture

Application for Leave to Appeal From a Federal Circuit Court of Australia Decision Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection (class Xa) Visa / Application for Leave to Appeal

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the Federal Circuit Court's interlocutory dismissal of the judicial review application." "Whether the Tribunal ignored the applicant's claims or China's one child policy." 'Whether the proposed grounds identified jurisdictional error or appealable error rather than inviting impermissible merits review.']

Ratio Decidendi

Leave to appeal was refused because the Tribunal did not ignore the applicant's claims or China's family planning policy, its findings were open on the evidence including country information about a policy change, and the proposed grounds identified no appealable error by the primary judge but instead invited impermissible merits review. Justice did not demand that leave be granted.

Court Disposition

The application for leave to appeal is dismissed.

Orders

  • ['The application for leave to appeal is dismissed.' "The applicant must pay the first respondent's costs as agreed or taxed."]