BIJ16 v Minister for Immigration and Border Protection [2018] FCA 1380

BIJ16 v Minister for Immigration and Border Protection [2018] FCA 1380

Leave to amend the notice of appeal was refused because the proposed cumulative-assessment ground had no merit: the Tribunal's reasons expressly stated that it considered the appellant's claims separately and cumulatively under both s 36(2)(a) and s 36(2)(aa) of the Migration Act. The second proposed ground was not a ground of appeal, and the appellant had received the written reasons and had an opportunity to amend. Any complaint about the weight given to the Sri Lankan MP letters was unsustainable because the Tribunal considered the letters and explained why it gave them little weight. The appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
03 September 2018
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Decision Concerning Refusal of a Protection (class Xa) Visa / Federal Court Appeal; Application to Amend Notice of Appeal
Outcome
Application to amend notice of appeal refused; appeal dismissed with costs.
Legal Topics
['protection Visa' 'refugee Convention Protection Obligations' 'complementary Protection' 'jurisdictional Error' 'cumulative Assessment of Claims' 'leave to Raise New Grounds on Appeal']
['migration Law' 'administrative Law'] ['protection Visa' 'refugee Convention Protection Obligations' 'complementary Protection' 'jurisdictional Error' 'cumulative Assessment of Claims' 'leave to Raise New Grounds on Appeal']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Decision Concerning Refusal of a Protection (class Xa) Visa / Federal Court Appeal; Application to Amend Notice of Appeal

Legal Issues

  1. 1 ['Whether the appellant should be granted leave to rely on grounds of appeal not raised below.' "Whether the Tribunal failed to assess the appellant's protection claims cumulatively." "Whether the appellant's complaint that he had not received written reasons disclosed a ground of appeal." 'Whether the Tribunal failed to take into account letters from Sri Lankan MPs or gave them legally erroneous weight.']

Ratio Decidendi

Leave to amend the notice of appeal was refused because the proposed cumulative-assessment ground had no merit: the Tribunal's reasons expressly stated that it considered the appellant's claims separately and cumulatively under both s 36(2)(a) and s 36(2)(aa) of the Migration Act. The second proposed ground was not a ground of appeal, and the appellant had received the written reasons and had an opportunity to amend. Any complaint about the weight given to the Sri Lankan MP letters was unsustainable because the Tribunal considered the letters and explained why it gave them little weight. The appeal was therefore dismissed.

Court Disposition

Application to amend notice of appeal refused; appeal dismissed with costs.

Orders

  • ["The appellant's application to amend his notice of appeal dated 30 October 2017 be refused." 'The appeal be dismissed.' "The appellant pay the first respondent's costs, to be agreed or assessed."]