Nusipepa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 24
Leave to rely on the amended notice of appeal was refused because all proposed grounds were without merit: the s 376 invalidity arguments based on equitable iniquity and waiver were misconceived or unsupported and any alleged error was not material; the Tribunal was not required to hold a further hearing about the outcome of criminal proceedings because the criminal charges were already an extant issue and the appellant had an opportunity to address their significance; and the apprehended bias allegation was not particularised and the Tribunal's receipt of adverse documents was part of its statutory function. The original appeal ground was not supported by submissions and the appeal was...
- Jurisdiction
- Australia
- Judgment Date
- 02 March 2022
- Procedural Posture
- Migration Visa Cancellation Judicial Review Appeal / Appeal From Federal Circuit Court Decision Dismissing Application for Judicial Review; Application for Leave to Rely on Amended Notice of Appeal
- Outcome
- Application for leave to amend the notice of appeal dismissed; appeal dismissed with costs.
- Legal Topics
- ['visa Cancellation Under S 116 of the Migration Act 1958 (cth)' 'confidential Information Certificates Under S 376 of the Migration Act 1958 (cth)' 'materiality and Jurisdictional Error' 'tribunal Hearing Obligations Under S 360 of the Migration Act 1958 (cth)' 'apprehended Bias' 'leave to Raise New Grounds on Appeal']
Case Brief
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Procedural Posture
Migration Visa Cancellation Judicial Review Appeal / Appeal From Federal Circuit Court Decision Dismissing Application for Judicial Review; Application for Leave to Rely on Amended Notice of Appeal
Legal Issues
- 1 ['Whether the appellant should be granted leave to rely on an amended notice of appeal raising four proposed grounds not advanced below.' 'Whether the primary judge erred in not finding that the certificate issued on 5 October 2018 under s 376 of the Migration Act 1958 (Cth) was invalid.' 'Whether any error concerning certification under s 376 of the Migration Act 1958 (Cth) was material and gave rise to jurisdictional error.' 'Whether the Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth) by not inviting the appellant to give evidence and present arguments about the outcome of criminal proceedings after the Tribunal hearing.' "Whether the Tribunal's decision was affected by apprehended bias."]
Ratio Decidendi
Leave to rely on the amended notice of appeal was refused because all proposed grounds were without merit: the s 376 invalidity arguments based on equitable iniquity and waiver were misconceived or unsupported and any alleged error was not material; the Tribunal was not required to hold a further hearing about the outcome of criminal proceedings because the criminal charges were already an extant issue and the appellant had an opportunity to address their significance; and the apprehended bias allegation was not particularised and the Tribunal's receipt of adverse documents was part of its statutory function. The original appeal ground was not supported by submissions and the appeal was...
Court Disposition
Application for leave to amend the notice of appeal dismissed; appeal dismissed with costs.
Orders
- ['The application for leave to amend the notice of appeal is dismissed.' 'The appeal is dismissed with costs.']
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