ARY16 v Minister for Immigration and Border Protection

The appellant, a Bangladeshi national, brought an appeal against a decision of the Minister for Immigration and Border Protection which had refused his application for a protection visa. The appellant had initially applied for the visa in 2013, claiming fear of persecution on the basis of his political activities with the Bangladesh National Party. The Tribunal found his claims not to be credible and the Minister’s decision was affirmed on review by the Federal Circuit Court. The appellant sought to appeal to the Federal Court against the decision of the FCC, but proposed to advance new grounds for appeal not previously advanced. The Minister opposed the appeal and the question for the Court was whether the appellant should be permitted to amend the Notice of Appeal to include these new grounds.

The central issue for the Court was whether there were any arguable grounds for appeal, new or otherwise, which would warrant granting the appellant leave to amend the Notice of Appeal. The Court had to determine if the appellant had provided a satisfactory explanation for his failure to raise the new grounds earlier and whether those new grounds had any merit. Given the appellant’s previous opportunities to file amended material, the Court also needed to consider whether the appellant’s conduct of the proceedings prejudiced the Minister.

The Court found that none of the proposed new grounds of appeal had any merit. The appellant had not provided any explanation as to why these grounds were not raised earlier and the Court considered this to be a significant impediment to the appeal. Given the lack of merit in the proposed new grounds and the absence of any explanation for the appellant’s delay in advancing them, the Court refused leave to amend the Notice of Appeal and dismissed the appeal. The appellant was ordered to pay the costs of the Minister.

ORDERS:
1. The application for leave to amend the Notice of Appeal is refused.
2. The appeal is dismissed.
3. The appellant is to pay the first respondent’s costs of the appeal.