Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134

Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134

Leave to advance the two new grounds was refused because the appellant gave no adequate explanation for not raising them before the primary judge, the grounds lacked merit, and the first ground could have been met by evidence below. The alleged health issue did not clearly emerge as an unarticulated claim because the appellant had stated he had no diagnosed medical or psychological conditions, did not frame his alcohol or anger issues as diagnosed health issues, adduced no expert or independent evidence linking them to health, and showed no basis that they would impede removal to the Netherlands. Any error was not material because there was no evidence supporting a realistic possibility...

Jurisdiction
Australia
Judgment Date
19 August 2022
Procedural Posture
Migration Appeal From Dismissal of Judicial Review of Administrative Appeals Tribunal Decision Affirming Non Revocation of Mandatory Visa Cancellation / Application for Leave to Rely on New Grounds of Appeal and Appeal
Outcome
Leave to advance grounds 1 and 2 was refused and the appeal was dismissed with costs payable by the appellant to the first respondent.
Legal Topics
['mandatory Visa Cancellation' 'revocation Under S 501 Ca(4)' 'character Test' 'direction No. 79' 'unarticulated Claims' 'materiality of Jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'strength, Nature and Duration of Ties to Australia' 'extent of Impediments If Removed']
['migration' 'administrative Law' 'practice and Procedure'] ['mandatory Visa Cancellation' 'revocation Under S 501 Ca(4)' 'character Test' 'direction No. 79' 'unarticulated Claims' 'materiality of Jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'strength, Nature and Duration of Ties to Australia' 'extent of Impediments If Removed']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of Judicial Review of Administrative Appeals Tribunal Decision Affirming Non Revocation of Mandatory Visa Cancellation / Application for Leave to Rely on New Grounds of Appeal and Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to argue grounds of appeal not raised before the primary judge.' "Whether the Tribunal failed to lawfully consider the appellant's health under paragraph 14.5(1)(a) of Direction No. 79 by not treating alcohol abuse and anger management issues as health issues or an unarticulated claim." 'Whether any alleged failure to consider health was material.' "Whether the Tribunal misunderstood paragraph 14.2 of Direction No. 79 by considering the appellant's mother and brother in Holland when assessing the strength, nature and duration of ties to Australia." 'Whether any alleged error concerning paragraph 14.2 was material.']

Ratio Decidendi

Leave to advance the two new grounds was refused because the appellant gave no adequate explanation for not raising them before the primary judge, the grounds lacked merit, and the first ground could have been met by evidence below. The alleged health issue did not clearly emerge as an unarticulated claim because the appellant had stated he had no diagnosed medical or psychological conditions, did not frame his alcohol or anger issues as diagnosed health issues, adduced no expert or independent evidence linking them to health, and showed no basis that they would impede removal to the Netherlands. Any error was not material because there was no evidence supporting a realistic possibility...

Court Disposition

Leave to advance grounds 1 and 2 was refused and the appeal was dismissed with costs payable by the appellant to the first respondent.

Orders

  • ['Leave to advance grounds 1 and 2 of the Notice of Appeal filed on 17 November 2021 is refused.' 'The appeal is dismissed.' "The appellant pay the first respondent's costs of and incidental to the appeal."]