Makdessi v Minister for Immigration and Multicultural Affairs [2001] FCA 1123

Makdessi v Minister for Immigration and Multicultural Affairs [2001] FCA 1123

Leave to amend was refused for the new issues because they could have been raised before the primary Judge, no satisfactory explanation was given for not doing so, and they were not issues of substance. The no evidence challenge failed because the appellant did not prove that he did not have his back to the attackers and the Tribunal's inference was open on the evidence. The argument that the Tribunal had required the sole reason for persecution to be a Convention reason failed because the Tribunal had found that the harm was not inflicted for a Convention reason at all, rather than for mixed Convention and non-Convention reasons. The appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
17 August 2001
Procedural Posture
Migration Appeal From Dismissal of an Application for Judicial Review of a Refugee Review Tribunal Decision Affirming Refusal of a Protection Visa / Appeal to the Full Court of the Federal Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'convention Nexus' 'leave to Amend Notice of Appeal' 'new Issues on Appeal' 'no Evidence Ground']
['migration Law' 'administrative Law' 'appellate Procedure'] ['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'convention Nexus' 'leave to Amend Notice of Appeal' 'new Issues on Appeal' 'no Evidence Ground']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of an Application for Judicial Review of a Refugee Review Tribunal Decision Affirming Refusal of a Protection Visa / Appeal to the Full Court of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether leave should be granted to amend the application for an order of review and the notice of appeal to raise issues not raised before the primary Judge.' "Whether there was no evidence to support the Tribunal's finding that the appellant had his back to his attackers during the fourth incident." 'Whether the Tribunal erred in law by wrongly assuming that persecution cannot arise unless motivated solely by Convention reasons.' "Whether the appeal from the primary Judge's dismissal of judicial review should be allowed."]

Ratio Decidendi

Leave to amend was refused for the new issues because they could have been raised before the primary Judge, no satisfactory explanation was given for not doing so, and they were not issues of substance. The no evidence challenge failed because the appellant did not prove that he did not have his back to the attackers and the Tribunal's inference was open on the evidence. The argument that the Tribunal had required the sole reason for persecution to be a Convention reason failed because the Tribunal had found that the harm was not inflicted for a Convention reason at all, rather than for mixed Convention and non-Convention reasons. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the respondent's costs."]