Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80

Where the Immigration Assessment Authority fails to consider a submission properly made before it and makes a decision infected by jurisdictional error, that decision is a nullity, and the Authority retains the legal power to re-open the matter, consider the omitted submission, and make a valid decision. Sections 473DC, 473DD and 473EA of the Migration Act do not preclude the Authority from making a fresh decision in these circumstances nor from considering submissions (as distinct from new information).

Parties
Appellant/first Respondent: Minister for Immigration and Border Protection; First Respondent: CLV16; Second Respondent: Immigration Assessment Authority; Applicant: AHT17
Jurisdiction
Australia
Judgment Date
25 May 2018
Procedural Posture
Appeal and Judicial Review / Full Federal Court Appeal and First Instance Review
Outcome
Appeal allowed in NSD 1021/2017 (Minister for Immigration and Border Protection v CLV16); application dismissed in NSD 1465/2017 (AHT17 v Minister for Immigration and Border Protection).
Legal Topics
Protection Visas, Judicial Review, Jurisdictional Error, Procedural Fairness, Statutory Construction
Administrative Law Migration Law Protection Visas Judicial Review Jurisdictional Error Procedural Fairness Statutory Construction

Case Brief

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Parties

Minister for Immigration and Border Protection

Appellant/first Respondent

CLV16

First Respondent

Immigration Assessment Authority

Second Respondent

AHT17

Applicant

Procedural Posture

Appeal and Judicial Review / Full Federal Court Appeal and First Instance Review

Legal Issues

  1. 1 Whether the Immigration Assessment Authority (IAA) can receive and consider submissions not taken into account in an initial decision.
  2. 2 Whether the IAA has power to re-open, vary or revoke a decision affected by jurisdictional error under Part 7AA of the Migration Act 1958 (Cth).
  3. 3 Whether an initial decision infected by jurisdictional error is a ‘decision’ for the purposes of s 473EA(3) of the Migration Act.

Ratio Decidendi

Where the Immigration Assessment Authority fails to consider a submission properly made before it and makes a decision infected by jurisdictional error, that decision is a nullity, and the Authority retains the legal power to re-open the matter, consider the omitted submission, and make a valid decision. Sections 473DC, 473DD and 473EA of the Migration Act do not preclude the Authority from making a fresh decision in these circumstances nor from considering submissions (as distinct from new information).

Court Disposition

Appeal allowed in NSD 1021/2017 (Minister for Immigration and Border Protection v CLV16); application dismissed in NSD 1465/2017 (AHT17 v Minister for Immigration and Border Protection).

Orders

  • In NSD 1021/2017: The appeal is allowed; the declaration and orders made by the Federal Circuit Court on 5 June 2017 are set aside; the proceeding is otherwise dismissed; the First Respondent is to pay the Appellant's costs of the appeal and in the Court below; any application for a certificate under s 6 of the...
  • In NSD 1465/2017: The application is dismissed; the Applicant is to pay the costs of the First Respondent.