FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXN16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2820 |
| Catchwords: PRACTICE AND PROCEDURE – where applicant seeks to raise grounds of review having submitted that it was unnecessary to make submissions to Tribunal on relevant aspect of test for internal relocation – whether having made such submission, applicant should be permitted to advance ground of judicial review – whether applicant should be granted leave to amend application for judicial review so as to raise ground not raised below – applicable principles – whether expedient and in interests of justice to allow amendment – where merit of the proposed ground is an important consideration – relevance of forensic decision not to make submissions where matter is remitted – application refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r 7.01 Migration Act 1958 (Cth), ss 36, 65, 91R, 430, 474, 476 |
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- Case
- [2019] FCCA 2820
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Tribunal had erred in its assessment of the applicant's claim for a protection visa. Specifically, the court was required to determine if the Tribunal had correctly identified and applied the legal test for internal relocation, and whether its assessment of the risk of harm, considering past and present events, was adequate. A secondary issue concerned the applicant's attempt to raise new grounds of review, including whether he should be permitted to amend his application to include grounds not previously submitted to the Tribunal.
The court found that while the Tribunal had correctly identified the legal test for internal relocation, it had failed to properly apply that test. The Tribunal's focus was considered overly narrow, and it did not adequately assess the relevant past and present events in evaluating the risk of harm to the applicant. This failure constituted a jurisdictional error, vitiating the Tribunal's decision. However, the court refused the applicant's request to amend his application to raise new grounds of review, finding that it was not expedient or in the interests of justice to allow the amendment, particularly given the merit of the proposed new ground and the fact that the matter was being remitted. The application for judicial review was allowed.
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Background
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Evidence
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Ratio Decidendi
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