EJJ18 v Minister for Home Affairs [2019] FCA 1296

EJJ18 v Minister for Home Affairs [2019] FCA 1296

Leave to raise the three new grounds was refused because there was no real explanation for why they were not raised before the primary judge and each lacked merit. The UN Rapporteur report was not material before the Authority and no breach of the statutory new information provisions was shown; the Authority had considered updated DFAT country information. The exceptional circumstances ground identified no error in the Authority's application of s 473DD. The remand detention ground failed because the Authority made factual findings about what would occur on return that rejected detention-based harm. The primary judge correctly rejected the original grounds because the Authority considered...

Jurisdiction
Australia
Judgment Date
15 August 2019
Procedural Posture
Migration Appeal From a Federal Circuit Court Decision Dismissing an Application for Review of a Decision of the Immigration Assessment Authority / Appeal; Leave Sought to Raise Three New Grounds
Outcome
Appeal dismissed; leave to raise proposed new grounds refused; no basis for a pro bono referral.
Legal Topics
['safe Haven Enterprise Visa' 'immigration Assessment Authority Review' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'new Information' 'exceptional Circumstances' 'real Chance Test' 'real Risk of Significant Harm']
['migration' 'administrative Law' 'refugee and Complementary Protection'] ['safe Haven Enterprise Visa' 'immigration Assessment Authority Review' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'new Information' 'exceptional Circumstances' 'real Chance Test' 'real Risk of Significant Harm']

Case Brief

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Procedural Posture

Migration Appeal From a Federal Circuit Court Decision Dismissing an Application for Review of a Decision of the Immigration Assessment Authority / Appeal; Leave Sought to Raise Three New Grounds

Legal Issues

  1. 1 ['Whether leave should be granted to raise three new grounds not argued before the Federal Circuit Court' "Whether the Authority failed to consider the appellant's position in the reasonably foreseeable future" 'Whether the Authority was bound to consider the possibility that its factual findings concerning the appellant were wrong' 'Whether the Authority erred by not considering a UN Rapporteur report about Sri Lanka' 'Whether the Authority applied an unduly narrow understanding of exceptional circumstances under s 473DD of the Migration Act 1958 (Cth)' 'Whether the Authority failed to consider fear of significant harm, including torture, in remand detention if returned to Sri Lanka']

Ratio Decidendi

Leave to raise the three new grounds was refused because there was no real explanation for why they were not raised before the primary judge and each lacked merit. The UN Rapporteur report was not material before the Authority and no breach of the statutory new information provisions was shown; the Authority had considered updated DFAT country information. The exceptional circumstances ground identified no error in the Authority's application of s 473DD. The remand detention ground failed because the Authority made factual findings about what would occur on return that rejected detention-based harm. The primary judge correctly rejected the original grounds because the Authority considered...

Court Disposition

Appeal dismissed; leave to raise proposed new grounds refused; no basis for a pro bono referral.

Orders

  • ['The appeal is dismissed.' 'The appellant do pay the costs of the first respondent to be assessed if not agreed.']