BEC17 v Minister for Immigration and Border Protection [2018] FCA 1884

BEC17 v Minister for Immigration and Border Protection [2018] FCA 1884

Leave to rely on proposed grounds 1 and 6 was refused because the appellant, who had legal representation below, gave no sufficient explanation for not raising those grounds in the FCCA and the proposed grounds lacked merit: the IAA had considered the extortion and overseas-family/perceived-wealth claims, and proposed ground 1 did not identify a protection claim within s 5J. Leave was granted for ground 7, but it failed because the IAA did not adopt an unduly narrow construction of s 473DD; after examining the UK Upper Tribunal decision it was open to the IAA to find no exceptional circumstances warranted considering it because it concerned a person with a different profile and city of...

Jurisdiction
Australia
Judgment Date
30 November 2018
Procedural Posture
Migration Appeal From Orders and Judgment of the Federal Circuit Court of Australia Dismissing Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Protection Visa / Appeal to the Federal Court of Australia; Application for Leave to Rely on Proposed Amended Grounds of Appeal
Outcome
Leave refused for proposed grounds 1 and 6; leave granted for proposed ground 7; appeal dismissed with costs.
Legal Topics
['protection Visa' 'immigration Assessment Authority' 'judicial Review' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'new Information Under S 473 DD of the Migration Act 1958 (cth)' 'particular Social Group' 'complementary Protection']
['migration Law' 'administrative Law'] ['protection Visa' 'immigration Assessment Authority' 'judicial Review' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'new Information Under S 473 DD of the Migration Act 1958 (cth)' 'particular Social Group' 'complementary Protection']

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Procedural Posture

Migration Appeal From Orders and Judgment of the Federal Circuit Court of Australia Dismissing Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Protection Visa / Appeal to the Federal Court of Australia; Application for Leave to Rely on Proposed Amended Grounds of Appeal

Legal Issues

  1. 1 ['Whether leave should be granted for the appellant to rely on proposed grounds 1 and 6, which were not raised in the Federal Circuit Court of Australia.' "Whether the Immigration Assessment Authority failed to consider the appellant's claim relating to extortion by criminals or militia." "Whether the Immigration Assessment Authority failed to consider the appellant's claim that he feared harm by reason of membership of a particular social group comprising people perceived to be wealthy because they have brothers or family members overseas." 'Whether the Federal Circuit Court erred in rejecting the contention that the Immigration Assessment Authority adopted an unduly narrow construction of s 473DD of the Migration Act 1958 (Cth) when declining to consider the UK Upper Tribunal decision.']

Ratio Decidendi

Leave to rely on proposed grounds 1 and 6 was refused because the appellant, who had legal representation below, gave no sufficient explanation for not raising those grounds in the FCCA and the proposed grounds lacked merit: the IAA had considered the extortion and overseas-family/perceived-wealth claims, and proposed ground 1 did not identify a protection claim within s 5J. Leave was granted for ground 7, but it failed because the IAA did not adopt an unduly narrow construction of s 473DD; after examining the UK Upper Tribunal decision it was open to the IAA to find no exceptional circumstances warranted considering it because it concerned a person with a different profile and city of...

Court Disposition

Leave refused for proposed grounds 1 and 6; leave granted for proposed ground 7; appeal dismissed with costs.

Orders

  • ['Leave is refused for the appellant to rely upon proposed grounds 1 and 6 of the amended notice of appeal.' 'The appellant have leave to rely upon proposed ground 7 of the amended notice of appeal.' 'The appeal be dismissed.' "The appellant pay the first respondent's costs, as agreed or assessed."]