BXZ16 v Minister for Immigration and Border Protection [2020] FCA 750

BXZ16 v Minister for Immigration and Border Protection [2020] FCA 750

Leave to file the amended notice of appeal was granted because the fresh ground was reasonably arguable, bore some correlation to grounds below, could not have been met by evidence below, replaced rather than added to existing grounds, and the appellant had been a minor. The appeal was dismissed because, on a fair reading, the IAA found it unlikely that the appellant would be charged but also assessed the more serious scenario that he would be charged, detained briefly and fined. Any inconsistency about charging was not material. The findings that any detention would be brief and that no custodial sentence would be imposed were open on the country information, including DFAT advice that...

Jurisdiction
Australia
Judgment Date
01 June 2020
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal and Application for Leave to File Amended Notice of Appeal
Outcome
Leave to file the amended notice of appeal granted; appeal dismissed with costs.
Legal Topics
['protection Visa' 'safe Haven Enterprise Visa' 'immigration Assessment Authority' 'jurisdictional Error' 'legal Unreasonableness' 'illogical or Irrational Fact Finding' 'complementary Protection' 'illegal Departure From Sri Lanka' 'fresh Ground on Appeal']
['migration Law' 'administrative Law' 'judicial Review'] ['protection Visa' 'safe Haven Enterprise Visa' 'immigration Assessment Authority' 'jurisdictional Error' 'legal Unreasonableness' 'illogical or Irrational Fact Finding' 'complementary Protection' 'illegal Departure From Sri Lanka' 'fresh Ground on Appeal']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal and Application for Leave to File Amended Notice of Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to raise a new ground of appeal not argued before the Federal Circuit Court.' 'Whether the Immigration Assessment Authority made unreasonable, irrational, illogical or unsupported findings about whether the appellant would be charged, detained, fined or sentenced for illegal departure from Sri Lanka.' "Whether any inconsistency in the Authority's findings about the appellant being charged under the Sri Lankan Immigrants and Emigrants Act was material to the outcome." "Whether the Authority failed to consider the full integers of the appellant's claim concerning the risk and degree of harm on return to Sri Lanka as a child, failed asylum seeker and person who had twice departed Sri Lanka unlawfully."]

Ratio Decidendi

Leave to file the amended notice of appeal was granted because the fresh ground was reasonably arguable, bore some correlation to grounds below, could not have been met by evidence below, replaced rather than added to existing grounds, and the appellant had been a minor. The appeal was dismissed because, on a fair reading, the IAA found it unlikely that the appellant would be charged but also assessed the more serious scenario that he would be charged, detained briefly and fined. Any inconsistency about charging was not material. The findings that any detention would be brief and that no custodial sentence would be imposed were open on the country information, including DFAT advice that...

Court Disposition

Leave to file the amended notice of appeal granted; appeal dismissed with costs.

Orders

  • ['The Appellant be granted leave to file an Amended Notice of Appeal in the form annexed to the affidavit of Christian Hearn affirmed 11 February 2020.' 'The appeal be dismissed.' "The Appellant pay the First Respondent's costs."]