BRG16 v Minister for Immigration and Border Protection [2018] FCA 287

BRG16 v Minister for Immigration and Border Protection [2018] FCA 287

Because the Federal Circuit Court proceeded on the basis that there was only one ground of review and did not consider or make findings on the second pleaded ground, the Court was sufficiently satisfied that there had been a constructive failure to exercise jurisdiction. Leave to appeal and the appeal were allowed by consent, the Federal Circuit Court orders were set aside, and the judicial review application was remitted for re-determination according to law.

Jurisdiction
Australia
Judgment Date
09 March 2018
Procedural Posture
Migration Judicial Review Appeal / Application for Leave to Appeal From Dismissal of Federal Circuit Court Judicial Review Proceedings Under R 44.12(1)(a)
Outcome
Leave to appeal allowed; appeal allowed; Federal Circuit Court orders set aside; matter remitted to the Federal Circuit Court for re-determination according to law; first respondent to pay costs.
Legal Topics
['protection Visa' 'judicial Review' 'jurisdictional Error' 'constructive Failure to Exercise Jurisdiction' 'leave to Appeal' 'remittal']
['migration' 'administrative Law'] ['protection Visa' 'judicial Review' 'jurisdictional Error' 'constructive Failure to Exercise Jurisdiction' 'leave to Appeal' 'remittal']

Case Brief

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Procedural Posture

Migration Judicial Review Appeal / Application for Leave to Appeal From Dismissal of Federal Circuit Court Judicial Review Proceedings Under R 44.12(1)(a)

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the Federal Circuit Court's dismissal of the judicial review application." 'Whether the Federal Circuit Court failed to consider or make findings on a pleaded ground of review.' 'Whether that failure amounted to a constructive failure to exercise jurisdiction requiring the matter to be remitted.']

Ratio Decidendi

Because the Federal Circuit Court proceeded on the basis that there was only one ground of review and did not consider or make findings on the second pleaded ground, the Court was sufficiently satisfied that there had been a constructive failure to exercise jurisdiction. Leave to appeal and the appeal were allowed by consent, the Federal Circuit Court orders were set aside, and the judicial review application was remitted for re-determination according to law.

Court Disposition

Leave to appeal allowed; appeal allowed; Federal Circuit Court orders set aside; matter remitted to the Federal Circuit Court for re-determination according to law; first respondent to pay costs.

Orders

  • ['Leave to appeal be allowed, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).' 'The appeal be allowed.' 'The orders and judgment made by the Federal Circuit Court of Australia be set aside.' 'The application for judicial review filed in the Federal Circuit Court of Australia on 6 July 2016 be...