SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351

SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351

Leave to amend the Notice of Appeal was refused because the proposed grounds would not succeed. The alleged breach of s 418(3) lacked any evidentiary basis, since non-citation of some documents by the Tribunal did not prove that the Secretary failed to provide them. Although the Tribunal failed to address important annexed material and that amounted to a constructive failure to exercise jurisdiction, the reasons read as a whole did not show a closed mind, blameworthy conduct, recklessness, or absence of a bona fide attempt to perform the Tribunal's functions. As the law then stood, the privative clause and NAAV also meant the s 418(3) submission had no substance.

Jurisdiction
Australia
Judgment Date
19 November 2002
Procedural Posture
Migration Appeal From Dismissal of Application for Review of Refugee Review Tribunal Decision Affirming Refusal of Protection Visa / Application for Leave to Amend Notice of Appeal Before Full Court
Outcome
Leave to amend the Notice of Appeal refused; appeal dismissed with costs.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'privative Clause Decision' 'migration Act 1958 (cth) S 474' 'migration Act 1958 (cth) S 418(3)' 'jurisdictional Error' 'bona Fide Attempt to Exercise Power' 'relevant Considerations' 'persecution']
['migration Law' 'administrative Law' 'refugee Law'] ['protection Visa' 'refugee Review Tribunal' 'privative Clause Decision' 'migration Act 1958 (cth) S 474' 'migration Act 1958 (cth) S 418(3)' 'jurisdictional Error' 'bona Fide Attempt to Exercise Power' 'relevant Considerations' 'persecution']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of Application for Review of Refugee Review Tribunal Decision Affirming Refusal of Protection Visa / Application for Leave to Amend Notice of Appeal Before Full Court

Legal Issues

  1. 1 ['Whether leave should be granted to amend the Notice of Appeal to raise proposed grounds concerning s 418(3) of the Migration Act 1958 (Cth) and alleged lack of bona fides by the Tribunal.' 'Whether the material before the Court established a breach of s 418(3) by failure to give relevant documents to the Registrar of the Refugee Review Tribunal.' "Whether the Tribunal's failure to consider material annexed to post-hearing submissions demonstrated absence of a bona fide attempt to exercise power." 'Whether any proposed ground could succeed despite the privative clause in s 474 of the Migration Act 1958 (Cth).']

Ratio Decidendi

Leave to amend the Notice of Appeal was refused because the proposed grounds would not succeed. The alleged breach of s 418(3) lacked any evidentiary basis, since non-citation of some documents by the Tribunal did not prove that the Secretary failed to provide them. Although the Tribunal failed to address important annexed material and that amounted to a constructive failure to exercise jurisdiction, the reasons read as a whole did not show a closed mind, blameworthy conduct, recklessness, or absence of a bona fide attempt to perform the Tribunal's functions. As the law then stood, the privative clause and NAAV also meant the s 418(3) submission had no substance.

Court Disposition

Leave to amend the Notice of Appeal refused; appeal dismissed with costs.

Orders

  • ['Leave to amend the Notice of Appeal is refused.' 'The appeal is dismissed.' "The appellant pay the respondent's costs."]