DWQ16 v Minister for Immigration and Border Protection [2018] FCA 1916

DWQ16 v Minister for Immigration and Border Protection [2018] FCA 1916

Leave to amend was refused because the proposed new grounds were not raised below, no explanation was given for that failure despite legal representation, and both proposed grounds had weak prospects. The s 424A ground was weak because the substance of the ICN Report appeared in the delegate's decision, which the appellant provided to the Tribunal, so s 424A(3)(b) applied. The s 66 ground was weak because the delegate's visa-class error did not affect the Tribunal's jurisdiction or decision and any declaration about the delegate's notification would have no utility. As the original grounds were not pressed, the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
30 November 2018
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia Concerning a Protection Visa Decision / Appeal and Interlocutory Application for Leave to Amend the Notice of Appeal
Outcome
The appellant's interlocutory application was dismissed, leave to amend was refused, and the appeal was dismissed with costs payable to the first respondent to be fixed by way of a lump sum.
Legal Topics
['protection Visa' 'section 424 a of the Migration Act 1958 (cth)' 'country Information Before the Tribunal' 'leave to Raise New Grounds on Appeal' 'notification Under S 66 of the Migration Act 1958 (cth)' 'part 7 Reviewable Decision']
['migration Law' 'administrative Law'] ['protection Visa' 'section 424 a of the Migration Act 1958 (cth)' 'country Information Before the Tribunal' 'leave to Raise New Grounds on Appeal' 'notification Under S 66 of the Migration Act 1958 (cth)' 'part 7 Reviewable Decision']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia Concerning a Protection Visa Decision / Appeal and Interlocutory Application for Leave to Amend the Notice of Appeal

Legal Issues

  1. 1 ['Whether the appellant should be granted leave to amend the notice of appeal to raise two grounds not raised in the Federal Circuit Court.' 'Whether the Tribunal breached s 424A of the Migration Act 1958 (Cth) by failing to give particulars of information in the Independent Catholic News report.' 'Whether the appellant had not been notified pursuant to s 66 of the Migration Act 1958 (Cth) because the delegate referred to refusal of a Class XA visa rather than a Class XD visa.']

Ratio Decidendi

Leave to amend was refused because the proposed new grounds were not raised below, no explanation was given for that failure despite legal representation, and both proposed grounds had weak prospects. The s 424A ground was weak because the substance of the ICN Report appeared in the delegate's decision, which the appellant provided to the Tribunal, so s 424A(3)(b) applied. The s 66 ground was weak because the delegate's visa-class error did not affect the Tribunal's jurisdiction or decision and any declaration about the delegate's notification would have no utility. As the original grounds were not pressed, the appeal was dismissed.

Court Disposition

The appellant's interlocutory application was dismissed, leave to amend was refused, and the appeal was dismissed with costs payable to the first respondent to be fixed by way of a lump sum.

Orders

  • ["The appellant's interlocutory application dated 28 August 2018 be dismissed." 'The appeal be dismissed.' "The appellant pay the first respondent's costs of the proceeding (including the interlocutory application), to be fixed by way of a lump sum." "Within 14 days, the parties file any agreed proposed minute of...