BAK15 v Minister for Home Affairs [2018] FCA 1173

BAK15 v Minister for Home Affairs [2018] FCA 1173

The appellant herself placed the determinative issue and relevant country information before the decision-maker, was aware it would be considered, and was on notice regarding the relevant laws and risk of harm on return; procedural fairness was not denied as the country information was not adverse, specific, or not already signalled, and there was no practical injustice from the way the ITOA was conducted. The assessor was not required to specifically put the additional country information or Vietnamese laws to the appellant as she had raised the risk herself and there was credible, public information on which the findings were obviously open.

Parties
Appellant: BAK15; Respondent: Minister for Home Affairs
Jurisdiction
Australia
Judgment Date
29 August 2018
Procedural Posture
Appeal / Federal Court Appeal From Decision of the Federal Circuit Court of Australia
Outcome
Appeal dismissed
Legal Topics
Procedural Fairness, International Treaty Obligations Assessment, Non Refoulement, Judicial Review
Migration Law Administrative Law Procedural Fairness International Treaty Obligations Assessment Non Refoulement Judicial Review

Case Brief

Summary, issues, holding and outcome

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Parties

BAK15

Appellant

Minister for Home Affairs

Respondent

Procedural Posture

Appeal / Federal Court Appeal From Decision of the Federal Circuit Court of Australia

Legal Issues

  1. 1 Whether the primary judge erred in finding procedural fairness was not denied by the assessor failing to put country information to the appellant
  2. 2 Whether the appellant suffered practical injustice due to that failure
  3. 3 Whether appellant was required to claim she could have made submissions in response

Ratio Decidendi

The appellant herself placed the determinative issue and relevant country information before the decision-maker, was aware it would be considered, and was on notice regarding the relevant laws and risk of harm on return; procedural fairness was not denied as the country information was not adverse, specific, or not already signalled, and there was no practical injustice from the way the ITOA was conducted. The assessor was not required to specifically put the additional country information or Vietnamese laws to the appellant as she had raised the risk herself and there was credible, public information on which the findings were obviously open.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • The appellant is to pay the respondent's costs as agreed or assessed.