FCA17 v Minister for Immigration and Border Protection [2019] FCA 947

Procedural Posture

Migration Application for Leave to Appeal From an Interlocutory Decision of the Federal Circuit Court Refusing Judicial Review of a Tribunal Protection Visa Decision / Application for Leave to Appeal

Legal Issues

1. 1 ['Whether the Federal Circuit Court judgment was attended by sufficient doubt to warrant reconsideration on appeal.' 'Whether substantial injustice would result if leave to appeal were refused, supposing the primary decision to be wrong.' 'Whether the Tribunal\'s reasons showed real doubt about material factual findings such that it was required to ask the "what if I am wrong?" question.' "Whether the Tribunal's findings about the applicant's claimed political involvement and adverse consequences in Malaysia disclosed jurisdictional error."]

Ratio Decidendi

Leave to appeal was refused because, on a fair reading of the Tribunal's reasons, the Tribunal did not have real doubt about the decisive issues. Although the Tribunal expressed lack of certainty about the applicant's claimed political involvement generally, it made confident findings that the applicant had not been arrested, monitored, threatened, harassed or intimidated because of political activity and that his business problems were not connected with political activity. The Federal Circuit Court's conclusion that the Tribunal was not required to ask the "what if I am wrong?" question was plainly open, so its judgment was not attended by sufficient doubt to warrant appeal.

Court Disposition

Application for leave to appeal refused; costs awarded to the first respondent.

Orders

• ['The application for leave to appeal be refused.' "The applicant pay the first respondent's costs of the application."]