SZWCO v Minister for Immigration and Border Protection [2016] FCA 51

SZWCO v Minister for Immigration and Border Protection [2016] FCA 51

Leave to amend the notice of appeal was refused because the proposed new grounds had not been raised below, no satisfactory explanation was given for that failure, the appellant had been represented, and the proposed grounds lacked merit. The Tribunal had dealt with any claim arising from return without a passport as part of the failed asylum seeker claim, and no claim that fraudulent procurement of the passport would expose the appellant to persecution was articulated or clearly arose. The proposed complementary protection and illogicality grounds did not demonstrate jurisdictional error. The sole appeal ground therefore failed and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
05 February 2016
Procedural Posture
Migration Appeal From Dismissal of an Application for Judicial Review of a Refugee Review Tribunal Decision Concerning Refusal of a Protection Visa / Federal Court Appeal and Application for Leave to Amend Notice of Appeal
Outcome
Leave to amend the notice of appeal refused; appeal dismissed with costs payable by the appellant to the first respondent as agreed or assessed.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'jurisdictional Error' 'failure to Consider a Claim or Integer of a Claim' 'complementary Protection' 'illogical or Irrational Reasoning' 'leave to Amend Notice of Appeal' 'new Grounds on Appeal' 'failed Asylum Seeker' 'sri Lanka']
['migration' 'administrative Law' 'practice and Procedure'] ['protection Visa' 'refugee Review Tribunal' 'jurisdictional Error' 'failure to Consider a Claim or Integer of a Claim' 'complementary Protection' 'illogical or Irrational Reasoning' 'leave to Amend Notice of Appeal' 'new Grounds on Appeal' 'failed Asylum Seeker' 'sri Lanka']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of an Application for Judicial Review of a Refugee Review Tribunal Decision Concerning Refusal of a Protection Visa / Federal Court Appeal and Application for Leave to Amend Notice of Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to amend the notice of appeal to raise grounds not argued before the Federal Circuit Court.' 'Whether the Tribunal failed to consider a claim or integer of a claim that the appellant would face harm because he lacked normal travel documents or had obtained his passport using a false birth certificate.' 'Whether the Tribunal failed to consider complementary protection independently of its findings about Refugee Convention protection, including a claimed risk arising from refusal to join or assist the TMVP.' "Whether the Tribunal's reasoning on credibility and other matters was irrational or illogical so as to amount to jurisdictional error."]

Ratio Decidendi

Leave to amend the notice of appeal was refused because the proposed new grounds had not been raised below, no satisfactory explanation was given for that failure, the appellant had been represented, and the proposed grounds lacked merit. The Tribunal had dealt with any claim arising from return without a passport as part of the failed asylum seeker claim, and no claim that fraudulent procurement of the passport would expose the appellant to persecution was articulated or clearly arose. The proposed complementary protection and illogicality grounds did not demonstrate jurisdictional error. The sole appeal ground therefore failed and the appeal was dismissed.

Court Disposition

Leave to amend the notice of appeal refused; appeal dismissed with costs payable by the appellant to the first respondent as agreed or assessed.

Orders

  • ['The name of the second respondent be amended to the "Administrative Appeals Tribunal".' 'Leave to amend the notice of appeal filed 22 July 2015 be refused.' 'The appeal be dismissed.' 'The appellant is to pay the costs of the first respondent as agreed or assessed.']