CLJ15 v Minister for Immigration and Border Protection [2018] FCA 1638

CLJ15 v Minister for Immigration and Border Protection [2018] FCA 1638

While the Tribunal misapplied s 36(2B)(c) by applying a test more favourable to the applicant than required, this could not have affected the outcome, as the Tribunal would have reached the same result applying the correct test; therefore, no jurisdictional error occurred. The Tribunal's findings as a whole showed it considered the risk to the applicant in both general and personal terms, and adequately addressed the evidence, including the (uncorroborative) brother's statement.

Jurisdiction
Australia
Judgment Date
31 October 2018
Procedural Posture
Federal Court Appeal (administrative Law) / Judgment on Application for Extension of Time and Appeal
Outcome
Extension of time granted; appeal dismissed
Legal Topics
['extension of Time to Appeal' 'constructive Failure to Exercise Jurisdiction' 'interpretation of Migration Act S 36(2 B)(c)' 'complementary Protection' 'consideration of Corroborative Evidence' 'procedural Fairness' 'jurisdictional Error']
['administrative Law' 'immigration Law' 'judicial Review'] ['extension of Time to Appeal' 'constructive Failure to Exercise Jurisdiction' 'interpretation of Migration Act S 36(2 B)(c)' 'complementary Protection' 'consideration of Corroborative Evidence' 'procedural Fairness' 'jurisdictional Error']

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

Federal Court Appeal (administrative Law) / Judgment on Application for Extension of Time and Appeal

Legal Issues

  1. 1 ['Whether extension of time to file appeal should be granted under r 36.05 of the Federal Court Rules 2011 (Cth)' 'Whether the Tribunal misapplied or misconstrued s 36(2B)(c) of the Migration Act 1958 (Cth) in assessing generalised risk and personal risk' 'Whether the Tribunal erred in referring to risk at a sub-national (city/region) rather than country level under s 36(2B)(c)' "Whether the Tribunal failed to consider corroborative evidence from the applicant's brother"]

Ratio Decidendi

While the Tribunal misapplied s 36(2B)(c) by applying a test more favourable to the applicant than required, this could not have affected the outcome, as the Tribunal would have reached the same result applying the correct test; therefore, no jurisdictional error occurred. The Tribunal's findings as a whole showed it considered the risk to the applicant in both general and personal terms, and adequately addressed the evidence, including the (uncorroborative) brother's statement.

Court Disposition

Extension of time granted; appeal dismissed

Orders

  • ['The applicant be granted an extension of time under rule 36.05 of the Federal Court Rules 2011 (Cth) in which to file a notice of appeal.' 'The applicant have leave to amend the amended draft notice of appeal filed 19 July 2017 in accordance with his written submissions dated 1 December 2017 and have leave to...