FEDERAL COURT OF AUSTRALIA
CPW15 v Minister for Home Affairs [2018] FCA 1919
Appeal from: CPW15 & Anor v Minister for Immigration & Anor [2018] FCCA 1307 File number: NSD 972 of 2018 Judge: MCKERRACHER J Date of judgment: 28 November 2018 Date of publication of reasons: 29 November 2018 Catchwords: MIGRATION – protection visa applications – appeal from the Federal Circuit Court of Australia – where the primary judge concluded the appellants’ son should not be joined as a party – where the primary judge concluded the application sought impermissible merits review – consideration of duties owed to accord procedural fairness
Held: appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 412(2), 425 Cases cited: Coulton v Holcombe (1986) 162 CLR 1
Hamod v New South Wales [2011] NSWCA 375
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
O’Brien v Komesaroff (1982) 150 CLR 310
Shrestha v Migration Review Tribunal (2015) 229 FCR 301
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588
Date of hearing: 28 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 38 Counsel for the Appellants: The Appellants appeared in person with the assistance of an interpreter Counsel for the First Respondent: Ms K Evans Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to costs ORDERS
NSD 972 of 2018 BETWEEN: CPW15
First Appellant
CPX15
Second Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
28 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed
2.The appellants pay the costs of the first respondent, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REVISED FROM THE TRANSCRIPTMCKERRACHER J:
This is an appeal from a decision made by the Federal Circuit Court of Australia on 25 May 2018: CPW15 & Anor v Minister for Immigration & Anor [2018] FCCA 1307. By that decision the Federal Circuit Court dismissed the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal. That decision had been given some time before on 18 November 2015 and the Tribunal there affirmed the decision of the delegate of the Minister for Home Affairs to refuse to grant the first and second appellant’s Protection (Class XA) visas (protection visas).
BACKGROUND
The appellants are both citizens of India. The first appellant arrived in Australia on 19 December 2012, as a tourist. The second appellant, his wife, arrived in Australia on 12 May 2013. She did…
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- Case
- [2018] FCA 1919
- Decision Date
CaseChat Overview and Summary
The central legal issues in this appeal were whether the appellants had established any appellable error in the decision of the primary judge or if there was any jurisdictional error in the decision of the Tribunal. Additionally, the court examined the duties owed to accord procedural fairness in the context of the appellants' case. The court assessed the arguments presented by both parties and reviewed the reasoning and evidence provided by the primary judge.
The court concluded that the appellants had failed to establish any appellable error in the decision of the primary judge or any jurisdictional error in the decision of the Tribunal. The basis for the delegate's decision was the lack of acceptance that the first appellant had any genuine fears as a Sikh in India, an issue the appellants were on notice of being determinative on review. The appeal did not succeed, and leave to rely on the new grounds generally must be refused. As a result, the court dismissed the appeal with costs.
ORDERS:
1. The appeal be dismissed.
2. The appellants pay the costs of the first respondent, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The appeal be dismissed
2. The appellants pay the costs of the first respondent, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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