CKI15 v Minister for Immigration and Border Protection [2022] FCA 1507

CKI15 v Minister for Immigration and Border Protection [2022] FCA 1507

Leave to amend the notice of appeal was refused because the appellant did not provide an adequate explanation for failing to raise the proposed grounds before the primary judge and did not establish, even at an impressionistic level, that the grounds had merit or that granting leave was in the interests of justice. The Tribunal had considered the risk to the appellant as a returned asylum seeker and illegal emigrant, including the DFAT Report, and there was no sufficient basis to infer that it overlooked material about torture or mistreatment or that its conclusion on serious or significant harm was legally unreasonable.

Jurisdiction
Australia
Judgment Date
16 December 2022
Procedural Posture
Migration Appeal From Dismissal of Application for Judicial Review of Administrative Appeals Tribunal Decision Refusing Protection Visa / Application for Leave to Amend Notice of Appeal to Rely on Two Grounds Not Raised Before the Primary Judge
Outcome
Leave to amend the notice of appeal was refused and the appeal was dismissed with costs.
Legal Topics
['protection Visa' 'judicial Review' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'legal Unreasonableness' 'dfat Country Information' 'returned Asylum Seeker' 'sri Lanka']
['migration' 'administrative Law' 'practice and Procedure'] ['protection Visa' 'judicial Review' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'legal Unreasonableness' 'dfat Country Information' 'returned Asylum Seeker' 'sri Lanka']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Migration Appeal From Dismissal of Application for Judicial Review of Administrative Appeals Tribunal Decision Refusing Protection Visa / Application for Leave to Amend Notice of Appeal to Rely on Two Grounds Not Raised Before the Primary Judge

Legal Issues

  1. 1 ['Whether leave should be granted to amend the notice of appeal to rely on two grounds not raised before the primary judge.' 'Whether the Tribunal failed to consider information in the DFAT Report relating to torture and possible mistreatment of persons held in prison or detention under Sri Lankan authorities.' 'Whether it was legally unreasonable for the Tribunal to find no real chance of serious harm or real risk of significant harm while the appellant might spend up to a fortnight in prison on remand.']

Ratio Decidendi

Leave to amend the notice of appeal was refused because the appellant did not provide an adequate explanation for failing to raise the proposed grounds before the primary judge and did not establish, even at an impressionistic level, that the grounds had merit or that granting leave was in the interests of justice. The Tribunal had considered the risk to the appellant as a returned asylum seeker and illegal emigrant, including the DFAT Report, and there was no sufficient basis to infer that it overlooked material about torture or mistreatment or that its conclusion on serious or significant harm was legally unreasonable.

Court Disposition

Leave to amend the notice of appeal was refused and the appeal was dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs to be assessed if not agreed."]