BSF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 61

BSF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 61

The appeal failed because the primary judge did not err in finding that the Tribunal committed no jurisdictional error. The appellant had been put on notice, through the NOICC and delegate's decision, of the substance of the concerns about the genuineness of the Iranian verdict document, the lawyer's denial, the stamp and signature issues, and his return to Iran. Non-disclosure of the s 438 certificate and documents therefore caused no practical injustice. The proposed fresh evidence was not shown to have been unavailable with reasonable diligence and, in any event, could not establish jurisdictional error because it sought to revisit factual and merits findings not made on the material...

Jurisdiction
Australia
Judgment Date
07 February 2022
Procedural Posture
Migration Appeal From Federal Circuit Court of Australia Dismissal of Application for Constitutional Writs / Application for Leave to Adduce Fresh Evidence, Application for Leave to Amend Notice of Appeal, and Appeal
Outcome
Application for leave to adduce fresh evidence refused; application for leave to amend notice of appeal allowed in part; appeal dismissed.
Legal Topics
['cancellation of Protection Visa Under S 109 of the Migration Act 1958 (cth)' 'bogus Document' 'incorrect Answers in Visa Application' 'procedural Fairness' 'section 438 Certificate' 'fresh Evidence on Appeal' 'leave to Amend Notice of Appeal' 'jurisdictional Error']
['migration Law' 'administrative Law' 'federal Court Appellate Procedure'] ['cancellation of Protection Visa Under S 109 of the Migration Act 1958 (cth)' 'bogus Document' 'incorrect Answers in Visa Application' 'procedural Fairness' 'section 438 Certificate' 'fresh Evidence on Appeal' 'leave to Amend Notice of Appeal' 'jurisdictional Error']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court of Australia Dismissal of Application for Constitutional Writs / Application for Leave to Adduce Fresh Evidence, Application for Leave to Amend Notice of Appeal, and Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to adduce fresh evidence on the appeal.' 'Whether leave should be granted to amend the notice of appeal.' "Whether the Federal Circuit Court erred in finding no jurisdictional error arising from the Tribunal's non-disclosure of the s 438 certificate and related documents." 'Whether the primary judge erred in refusing to receive or rely on the Code of Procedure of Public and Revolutionary Courts of the Islamic Republic of Iran.' "Whether the Tribunal's findings about the genuineness of the Iranian court documents and cancellation of the visa involved jurisdictional error."]

Ratio Decidendi

The appeal failed because the primary judge did not err in finding that the Tribunal committed no jurisdictional error. The appellant had been put on notice, through the NOICC and delegate's decision, of the substance of the concerns about the genuineness of the Iranian verdict document, the lawyer's denial, the stamp and signature issues, and his return to Iran. Non-disclosure of the s 438 certificate and documents therefore caused no practical injustice. The proposed fresh evidence was not shown to have been unavailable with reasonable diligence and, in any event, could not establish jurisdictional error because it sought to revisit factual and merits findings not made on the material...

Court Disposition

Application for leave to adduce fresh evidence refused; application for leave to amend notice of appeal allowed in part; appeal dismissed.

Orders

  • ['The application for leave to adduce fresh evidence is refused.' 'The application for leave to amend the notice of appeal is allowed in part, save for ground 5 of the Amended Notice of Appeal.' 'The appeal, as amended, is dismissed.' 'The appellant pay the costs of the first respondent of and incidental to each...