CWD16 v Minister for Immigration and Border Protection [2018] FCA 578

CWD16 v Minister for Immigration and Border Protection [2018] FCA 578

Leave to amend was refused because the proposed amendment was brought well outside the 28 day period, was unsupported by any affidavit explaining the delay or why the argument had not been raised before the Federal Circuit Court, the Appellant had been legally represented by a solicitor below, the proposed amendment was foreshadowed only shortly before the appeal hearing, and the Authority's characterisation of the 9 August 2016 medical report as not constituting new information and as recounting the Appellant's own claims did not expose any self-evident error. Granting leave would also tend to prejudice the Pt 7AA fast track scheme and impermissibly transfer into the Court's appellate...

Jurisdiction
Australia
Judgment Date
27 April 2018
Procedural Posture
Migration Appeal / Application for Leave to Amend Notice of Appeal in an Appeal From the Federal Circuit Court of Australia
Outcome
Application for leave to amend refused; appeal dismissed with costs.
Legal Topics
['leave to Amend Notice of Appeal' 'fast Track Reviewable Decisions' 'immigration Assessment Authority' 'new Information' 'jurisdictional Error']
['administrative Law' 'migration Law' 'practice and Procedure'] ['leave to Amend Notice of Appeal' 'fast Track Reviewable Decisions' 'immigration Assessment Authority' 'new Information' '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 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Migration Appeal / Application for Leave to Amend Notice of Appeal in an Appeal From the Federal Circuit Court of Australia

Legal Issues

  1. 1 ['Whether leave should be granted to amend the Notice of Appeal outside the 28 day period in r 36.10 of the Federal Court Rules 2011 (Cth).' 'Whether the proposed new ground alleging breach of s 473DD of the Migration Act 1958 (Cth) disclosed a self-evident error by the Immigration Assessment Authority in its treatment of the 9 August 2016 medical report.' "Whether granting leave would be expedient in the interests of the administration of justice given the delay, lack of explanation, Pt 7AA context and limits on the Court's original jurisdiction."]

Ratio Decidendi

Leave to amend was refused because the proposed amendment was brought well outside the 28 day period, was unsupported by any affidavit explaining the delay or why the argument had not been raised before the Federal Circuit Court, the Appellant had been legally represented by a solicitor below, the proposed amendment was foreshadowed only shortly before the appeal hearing, and the Authority's characterisation of the 9 August 2016 medical report as not constituting new information and as recounting the Appellant's own claims did not expose any self-evident error. Granting leave would also tend to prejudice the Pt 7AA fast track scheme and impermissibly transfer into the Court's appellate...

Court Disposition

Application for leave to amend refused; appeal dismissed with costs.

Orders

  • ['The application for leave to amend the Notice of Appeal filed 18 April 2017 is refused.' 'The appeal is dismissed.' 'The Appellant is to pay the costs of the First Respondent.']