Uolilo v Minister for Home Affairs [2021] FCAFC 138

Uolilo v Minister for Home Affairs [2021] FCAFC 138

Leave to rely on the three new appeal grounds was refused because the grounds were not raised before the primary judge, no adequate explanation was given beyond a change of counsel, and the grounds lacked merit. The Tribunal considered the appellant's claimed risk of harm in Samoa and gave it limited weight on the evidence; no relevant non-refoulement obligation or material jurisdictional error was shown. The Tribunal's statement about no evidence of impact on victims was properly read as no adverse impact evidence, and the victim was not shown to be a member of the Australian community. Any possible error in treating the Samoan sentence as indicating seriousness was not material because...

Jurisdiction
Australia
Judgment Date
06 August 2021
Procedural Posture
Migration Appeal From Dismissal of Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Refusal to Grant Partner (migrant) (class Bc) Visa Under S 501(1) of the Migration Act 1958 (cth) / Application for Leave to Rely on New Grounds on Appeal and Appeal
Outcome
Leave to rely on new grounds refused; appeal dismissed with costs.
Legal Topics
['character Test' 'visa Refusal Under S 501(1)' 'ministerial Direction No 79' 'non Refoulement Obligations' 'leave to Raise New Grounds on Appeal' 'jurisdictional Error' 'impact on Victims' 'foreign Criminal Convictions and Sentencing']
['migration Law' 'administrative Law' 'judicial Review'] ['character Test' 'visa Refusal Under S 501(1)' 'ministerial Direction No 79' 'non Refoulement Obligations' 'leave to Raise New Grounds on Appeal' 'jurisdictional Error' 'impact on Victims' 'foreign Criminal Convictions and Sentencing']

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Procedural Posture

Migration Appeal From Dismissal of Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Refusal to Grant Partner (migrant) (class Bc) Visa Under S 501(1) of the Migration Act 1958 (cth) / Application for Leave to Rely on New Grounds on Appeal and Appeal

Legal Issues

  1. 1 ['Whether the appellant should be granted leave to rely on three new grounds of review not raised before the primary judge.' 'Whether Direction No 79, particularly para 12.1 concerning international non-refoulement obligations, was invalid or irrelevant because it was inconsistent with the Migration Act 1958 (Cth).' 'Whether the Tribunal erred in finding there was no evidence of any impact on victims if the visa were granted.' "Whether the Tribunal erred by applying principles concerning Australian criminal judgments when considering the appellant's sentence imposed by the Supreme Court of Samoa." 'Whether any asserted errors were jurisdictional and material.']

Ratio Decidendi

Leave to rely on the three new appeal grounds was refused because the grounds were not raised before the primary judge, no adequate explanation was given beyond a change of counsel, and the grounds lacked merit. The Tribunal considered the appellant's claimed risk of harm in Samoa and gave it limited weight on the evidence; no relevant non-refoulement obligation or material jurisdictional error was shown. The Tribunal's statement about no evidence of impact on victims was properly read as no adverse impact evidence, and the victim was not shown to be a member of the Australian community. Any possible error in treating the Samoan sentence as indicating seriousness was not material because...

Court Disposition

Leave to rely on new grounds refused; appeal dismissed with costs.

Orders

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