ACG15 v Minister for Immigration and Border Protection [2020] FCA 128

ACG15 v Minister for Immigration and Border Protection [2020] FCA 128

The Tribunal failed to notify the appellant of the receipt of an invalid section 438 notice and disregarded documents referred in that notice. However, as the only arguably material document was the Entry Interview, and given the Tribunal's findings on availability of safe internal relocation for the appellant, there was no realistic possibility the Tribunal's decision could have been different even if procedural fairness had been accorded. Accordingly, no jurisdictional error was established and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
14 February 2020
Procedural Posture
Appeal / Judgment After Appeal From Federal Circuit Court Decision on Judicial Review
Outcome
Appeal dismissed, with costs awarded against the appellant.
Legal Topics
['procedural Fairness' 'judicial Review' 'protection Visa' 'administrative Appeals Tribunal' 'section 438 Notice' 'materiality of Breach' 'relocation in Protection Visa Context']
['migration Law' 'administrative Law'] ['procedural Fairness' 'judicial Review' 'protection Visa' 'administrative Appeals Tribunal' 'section 438 Notice' 'materiality of Breach' 'relocation in Protection Visa Context']

Case Brief

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Procedural Posture

Appeal / Judgment After Appeal From Federal Circuit Court Decision on Judicial Review

Legal Issues

  1. 1 ["Whether the Tribunal's failure to notify the appellant of the section 438 notice and documents referred was a breach of procedural fairness" 'Whether that procedural breach or the invalidity of the section 438 notice resulted in material (jurisdictional) error' "Whether there was a realistic possibility that the Tribunal's decision could have been different if the procedural fairness breach had not occurred"]

Ratio Decidendi

The Tribunal failed to notify the appellant of the receipt of an invalid section 438 notice and disregarded documents referred in that notice. However, as the only arguably material document was the Entry Interview, and given the Tribunal's findings on availability of safe internal relocation for the appellant, there was no realistic possibility the Tribunal's decision could have been different even if procedural fairness had been accorded. Accordingly, no jurisdictional error was established and the appeal was dismissed.

Court Disposition

Appeal dismissed, with costs awarded against the appellant.

Orders

  • ['The appellant has leave to rely on ground 3 in the second amended notice of appeal dated 19 October 2017.' 'The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal."]