AFE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 162

FEDERAL COURT OF AUSTRALIA

AFE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 162 Appeal from: AFE18 v Minister for Home Affairs & Anor [2019] FCCA 2225

File number: NSD 1625 of 2019

Judge: KATZMANN J

Date of judgment: 20 February 2020

Catchwords: PRACTICE AND PROCEDURE — application for leave to rely on grounds of appeal not raised below — whether leave should be granted — whether satisfactory explanation for change of approach — potential prejudice to respondent — whether new grounds of sufficient merit to warrant grant of leave MIGRATION — appeal from Federal Circuit Court of Australia — fast track reviewable decision of Immigration Assessment Authority ("Authority") — where Authority decided not to consider "new information" — where grounds of appeal alleged that Authority adopted an unduly narrow construction of the term "exceptional circumstances" under s 473DD of Migration Act 1958 (Cth) and that Authority's decision not to consider the information was legally unreasonable; that Authority made material findings of fact that were legally unreasonable; that Authority failed to consider appellant's claims cumulatively; that Authority failed to give proper, genuine and realistic consideration to appellant's application — whether any ground had sufficient merit to warrant grant of leave

Legislation: Migration Act 1958 ss 5(1), 473CA, 473CB, 473CC(1), 473DB, 473DD, Pt 7AA Federal Court of Australia Act 1976 (Cth) s 24(1)(d)

Cases cited: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Han v Minister for Home Affairs [2019] FCA 331 Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478 M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 Singh v Minister for Home Affairs (2019) 267 FCR 200 SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 University of Wollongong v Metwally [1985] HCA 28; 60 ALR 68 VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398