WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 10

WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 10

Leave to rely on the amended ground of appeal was refused because the argument was not run before the Tribunal or the primary judge, there was no adequate explanation for raising it only on appeal, and the proposed ground lacked sufficient merit. Even assuming the appellant's construction of "the Australian community" were correct, the Tribunal's findings about the nature of the appellant's offending provided no reasonable prospect of establishing jurisdictional error.

Jurisdiction
Australia
Judgment Date
01 February 2021
Procedural Posture
Migration Appeal / Appeal to the Full Court of the Federal Court of Australia; Application to Rely on Amended Sole Ground of Appeal
Outcome
Appeal dismissed; leave to rely on the sole amended ground of appeal refused.
Legal Topics
['protection Visa Criterion Under S 36(1 C)(b) of the Migration Act 1958 (cth)' 'danger to the Australian Community' 'jurisdictional Error' 'leave to Raise a New Ground on Appeal' 'finality of Litigation']
['migration Law' 'administrative Law' 'appellate Procedure'] ['protection Visa Criterion Under S 36(1 C)(b) of the Migration Act 1958 (cth)' 'danger to the Australian Community' 'jurisdictional Error' 'leave to Raise a New Ground on Appeal' 'finality of Litigation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Migration Appeal / Appeal to the Full Court of the Federal Court of Australia; Application to Rely on Amended Sole Ground of Appeal

Legal Issues

  1. 1 ['Whether the appellant required leave to advance an amended ground of appeal not put to the Tribunal or the primary judge.' 'Whether leave should be granted to argue that the Tribunal misunderstood the statutory phrase "the Australian community" in s 36(1C)(b) of the Migration Act 1958 (Cth).' 'Whether the proposed new ground had sufficient merit to justify leave.']

Ratio Decidendi

Leave to rely on the amended ground of appeal was refused because the argument was not run before the Tribunal or the primary judge, there was no adequate explanation for raising it only on appeal, and the proposed ground lacked sufficient merit. Even assuming the appellant's construction of "the Australian community" were correct, the Tribunal's findings about the nature of the appellant's offending provided no reasonable prospect of establishing jurisdictional error.

Court Disposition

Appeal dismissed; leave to rely on the sole amended ground of appeal refused.

Orders

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