MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

Leave to amend the notice of appeal was granted because the substantive issue did not lack reasonable prospects of success. However, the primary judge had ruled in the exercise of discretion that the appellant could not rely on a new argument raised for the first time in oral reply submissions. The appellant did not establish any House v The King error in that discretionary ruling, particularly given the late stage at which the argument was raised and the absence of detailed submissions from the Minister. As the remaining grounds of appeal were abandoned, the appeal had to be dismissed.

Jurisdiction
Australia
Judgment Date
24 August 2016
Procedural Posture
Migration Appeal Concerning Judicial Review and an Application for Extension of Time Under S 477(2) of the Migration Act 1958 (cth) / Appeal to the Full Court of the Federal Court From a Single Judge's Dismissal of an Application for Judicial Review of a Federal Circuit Court Decision
Outcome
Leave to amend the notice of appeal granted; appeal dismissed; costs reserved.
Legal Topics
['extension of Time' 'jurisdictional Error' 'discretionary Appellate Review' 'leave to Amend Notice of Appeal' 'protection Visa Refusal' 'federal Circuit Court Migration Jurisdiction']
['migration' 'administrative Law' 'judicial Review' 'civil Procedure'] ['extension of Time' 'jurisdictional Error' 'discretionary Appellate Review' 'leave to Amend Notice of Appeal' 'protection Visa Refusal' 'federal Circuit Court Migration Jurisdiction']

Case Brief

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Procedural Posture

Migration Appeal Concerning Judicial Review and an Application for Extension of Time Under S 477(2) of the Migration Act 1958 (cth) / Appeal to the Full Court of the Federal Court From a Single Judge's Dismissal of an Application for Judicial Review of a Federal Circuit Court Decision

Legal Issues

  1. 1 ["Whether leave should be granted to amend the notice of appeal to raise new grounds concerning the Federal Circuit Court's approach to s 477(2) of the Migration Act 1958 (Cth)." 'Whether the primary judge ruled in the exercise of discretion that the appellant could not rely on a new argument raised in oral reply submissions.' "Whether any House v The King error was established in the primary judge's discretionary ruling." 'Whether the Federal Circuit Court misconstrued the power to extend time by treating the merits inquiry as requiring satisfaction that the appellant could succeed rather than asking whether the proposed grounds were reasonably arguable or had reasonable prospects of success.']

Ratio Decidendi

Leave to amend the notice of appeal was granted because the substantive issue did not lack reasonable prospects of success. However, the primary judge had ruled in the exercise of discretion that the appellant could not rely on a new argument raised for the first time in oral reply submissions. The appellant did not establish any House v The King error in that discretionary ruling, particularly given the late stage at which the argument was raised and the absence of detailed submissions from the Minister. As the remaining grounds of appeal were abandoned, the appeal had to be dismissed.

Court Disposition

Leave to amend the notice of appeal granted; appeal dismissed; costs reserved.

Orders

  • ['Leave is granted to amend the notice of appeal.' 'The appeal is dismissed.' 'Costs are reserved.' 'The first respondent is to file and serve a short submission in support of its application for costs within seven days of this judgment.' 'If the appellant wishes to oppose any costs order sought, the appellant is to...