CYO16 v Minister for Immigration and Border Protection [2019] FCA 2

CYO16 v Minister for Immigration and Border Protection [2019] FCA 2

Leave to rely on the proposed ground was refused because the ground was not raised before the Federal Circuit Court, justice did not require leave, the proposed ground lacked merit, and the Minister would be prejudiced because evidence relevant to whether the DFAT material was before the delegate could have been led below. The February 2015 DFAT Report was in fact footnoted in the delegate's decision record and was not new information. Even if the DFAT Thematic Report was not before the delegate and the IAA erred in treating it as not new information, any such error was not of such gravity as to be jurisdictional and did not warrant discretionary relief.

Jurisdiction
Australia
Judgment Date
10 January 2019
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia / Appeal Concerning Refusal of Leave to Rely on a Proposed New Ground and Challenge to Dismissal of Judicial Review
Outcome
Leave to rely on the ground in the draft notice of appeal was refused and the appeal was dismissed with costs.
Legal Topics
['safe Haven Enterprise Visa' 'immigration Assessment Authority Review' 'fast Track Reviewable Decision' 'new Information Under Part 7 AA of the Migration Act 1958 (cth)' 'jurisdictional Error' 'leave to Raise New Ground on Appeal']
['migration Law' 'administrative Law'] ['safe Haven Enterprise Visa' 'immigration Assessment Authority Review' 'fast Track Reviewable Decision' 'new Information Under Part 7 AA of the Migration Act 1958 (cth)' 'jurisdictional Error' 'leave to Raise New Ground on Appeal']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia / Appeal Concerning Refusal of Leave to Rely on a Proposed New Ground and Challenge to Dismissal of Judicial Review

Legal Issues

  1. 1 ['Whether the appellant should be granted leave to rely on a proposed ground not raised in the Federal Circuit Court.' 'Whether the proposed ground alleged that the Immigration Assessment Authority failed to review a fast track reviewable decision under s 473CC of the Migration Act 1958 (Cth).' 'Whether DFAT reports supplied to the Immigration Assessment Authority were new information for the purposes of ss 473DC and 473DD of the Migration Act 1958 (Cth).' 'Whether any error by the Immigration Assessment Authority about whether the DFAT Thematic Report was before the delegate was jurisdictional or warranted relief.']

Ratio Decidendi

Leave to rely on the proposed ground was refused because the ground was not raised before the Federal Circuit Court, justice did not require leave, the proposed ground lacked merit, and the Minister would be prejudiced because evidence relevant to whether the DFAT material was before the delegate could have been led below. The February 2015 DFAT Report was in fact footnoted in the delegate's decision record and was not new information. Even if the DFAT Thematic Report was not before the delegate and the IAA erred in treating it as not new information, any such error was not of such gravity as to be jurisdictional and did not warrant discretionary relief.

Court Disposition

Leave to rely on the ground in the draft notice of appeal was refused and the appeal was dismissed with costs.

Orders

  • ['Leave to rely on the ground in the draft notice of appeal is refused.' 'The appeal is dismissed.' "The appellant must pay the first respondent's costs as agreed or taxed."]