DTM20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1011

DTM20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1011

Leave to raise the new grounds was refused because the proposed grounds lacked sufficient merit: the Tribunal had explicitly considered the appellant's hardship, medical and mental health issues, and claimed compelling need to remain in Australia, and had regard to the PAM3 matters. The appellant's complaints amounted to disagreement with the merits of the Tribunal's decision. There was also no satisfactory evidence explaining why the grounds were not raised before the primary judge, the Minister would suffer prejudice, and relief would in any event be futile because the appellant had no other judicial review proceedings on foot satisfying the visa criteria. The appeal was dismissed.

Jurisdiction
Australia
Judgment Date
25 August 2023
Procedural Posture
Migration Appeal From Dismissal of Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Cancellation of Bridging Visa E (subclass 050) / Appeal; Application for Leave to Raise New Grounds Not Raised Before the Primary Judge
Outcome
Leave to raise new grounds denied; appeal dismissed; appellant ordered to pay the first respondent's costs fixed at $7,000.
Legal Topics
['visa Cancellation Under S 116(1)(aa) of the Migration Act 1958 (cth)' 'bridging Visa E (subclass 050)' 'judicial Review' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'tribunal Consideration of Hardship and Compelling Need to Remain in Australia']
['migration Law' 'administrative Law'] ['visa Cancellation Under S 116(1)(aa) of the Migration Act 1958 (cth)' 'bridging Visa E (subclass 050)' 'judicial Review' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'tribunal Consideration of Hardship and Compelling Need to Remain in Australia']

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Procedural Posture

Migration Appeal From Dismissal of Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Cancellation of Bridging Visa E (subclass 050) / Appeal; Application for Leave to Raise New Grounds Not Raised Before the Primary Judge

Legal Issues

  1. 1 ["Whether the appellant should be granted leave to raise new grounds of judicial review of the Tribunal's decision that were not raised before the primary judge." 'Whether the Tribunal failed properly to consider the degree of hardship that may be caused to the appellant if returned to Sri Lanka.' 'Whether the Tribunal failed properly to consider whether the appellant had a compelling need to remain in Australia, including for medical treatment.' "Whether any alleged brevity in the Tribunal's reasons indicated jurisdictional error."]

Ratio Decidendi

Leave to raise the new grounds was refused because the proposed grounds lacked sufficient merit: the Tribunal had explicitly considered the appellant's hardship, medical and mental health issues, and claimed compelling need to remain in Australia, and had regard to the PAM3 matters. The appellant's complaints amounted to disagreement with the merits of the Tribunal's decision. There was also no satisfactory evidence explaining why the grounds were not raised before the primary judge, the Minister would suffer prejudice, and relief would in any event be futile because the appellant had no other judicial review proceedings on foot satisfying the visa criteria. The appeal was dismissed.

Court Disposition

Leave to raise new grounds denied; appeal dismissed; appellant ordered to pay the first respondent's costs fixed at $7,000.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs fixed in the amount of $7,000."]