Alp20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In Alp20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the applicant sought leave to appeal a decision of the Federal Circuit Court, which had dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal (AAT). The primary judge had refused leave to rely on an amended application, which the applicant had filed in an attempt to rectify deficiencies in his original application. The central legal issues revolved around whether the primary judge had erred in his assessment of the arguability of the applicant's proposed amended application and whether the applicant should be granted leave to appeal the primary judge's decision.

The court found that the primary judge had erred in his assessment of the arguability of the proposed amended application. The court held that the primary judge should have granted leave to rely on the amended application, as it raised an arguable case for the relief claimed. The court also noted that the primary judge's assessment had been made under difficult circumstances, with a less than lucid proposed amended application and during a show cause hearing, which did not allow for extended reflection. The court concluded that the primary judge's refusal to grant leave to amend the application effectively amounted to a final disposition of the case and the extinguishment of the applicant's rights.

Consequently, the court granted leave to appeal and set aside the orders made by the Federal Circuit Court on 12 November 2020. The matter was remitted to the Federal Circuit Court for reconsideration according to law. The court also ordered that the costs of the proceeding to date in the Federal Circuit Court be costs in the proceeding below and that the respondent pay the applicant's costs of 30 June 2021.