SZSRR v Minister for Immigration and Border Protection [2017] FCA 328

SZSRR v Minister for Immigration and Border Protection [2017] FCA 328

The Federal Circuit Court judge did not make appellable error in refusing leave to amend. The first proposed ground lacked reasonable prospects because the material from the 31 January 2014 hearing was part of the appellant's own claims, did not reject, deny or undermine those claims, was not shown to have been affected by any relevant interpreting error, and in any event fell within the s 424A(3)(b) exception as information the applicant gave for the review; the appellant had a meaningful opportunity at the 12 February 2014 hearing to confirm, correct and expand on the material. The second proposed ground also lacked merit because no arguable application of an incorrect balance of...

Jurisdiction
Australia
Judgment Date
31 March 2017
Procedural Posture
Migration Appeal From Federal Circuit Court of Australia Judicial Review Proceeding / Appeal From Refusal of Leave to Amend Application and Dismissal of Application
Outcome
Appeal dismissed.
Legal Topics
['protection Visa' 'reasonable Prospects of Success' 'leave to Amend' 'procedural Fairness' 'tribunal Hearing' 'sections 424 a, 424 AA and 425 of the Migration Act 1958 (cth)' 'real Chance Test']
['migration Law' 'administrative Law' 'judicial Review'] ['protection Visa' 'reasonable Prospects of Success' 'leave to Amend' 'procedural Fairness' 'tribunal Hearing' 'sections 424 A, 424 AA and 425 of the Migration Act 1958 (cth)' 'real Chance Test']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court of Australia Judicial Review Proceeding / Appeal From Refusal of Leave to Amend Application and Dismissal of Application

Legal Issues

  1. 1 ['Whether the Federal Circuit Court judge erred in refusing leave to amend to rely on two proposed grounds of review because they lacked reasonable prospects of success.' 'Whether the Tribunal breached s 424A, s 424AA or s 425 of the Migration Act 1958 (Cth) by using material from an earlier hearing affected by interpreting concerns.' 'Whether the Tribunal asked itself the wrong question by applying a balance of probabilities approach instead of the real chance test.' 'Whether the Federal Circuit Court judge made an appellable error in the exercise of discretion.']

Ratio Decidendi

The Federal Circuit Court judge did not make appellable error in refusing leave to amend. The first proposed ground lacked reasonable prospects because the material from the 31 January 2014 hearing was part of the appellant's own claims, did not reject, deny or undermine those claims, was not shown to have been affected by any relevant interpreting error, and in any event fell within the s 424A(3)(b) exception as information the applicant gave for the review; the appellant had a meaningful opportunity at the 12 February 2014 hearing to confirm, correct and expand on the material. The second proposed ground also lacked merit because no arguable application of an incorrect balance of...

Court Disposition

Appeal dismissed.

Orders

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