BAK18 v Minister for Home Affairs [2020] FCA 83

BAK18 v Minister for Home Affairs [2020] FCA 83

The material concerning the claims of BBI18 and BBJ18 was in the Secretary's possession and was relevant to the review of the refusal decision concerning the BAK18 appellants because the claims arose from the same or overlapping family factual matrix and had been treated by a Departmental delegate as inter-dependent family claims. The failure to provide that material to the IAA as review material under s 473CB(1)(c) meant the IAA's review miscarried. It was not possible to say the failure could not have made a difference, so the breach was material and amounted to jurisdictional error. The Federal Circuit Court erred by failing to find that jurisdictional error.

Jurisdiction
Australia
Judgment Date
07 February 2020
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal
Outcome
Appeal allowed; Federal Circuit Court orders set aside; constitutional writs issued quashing the IAA decision and matter remitted to the IAA; costs ordered against the first respondent.
Legal Topics
['fast Track Reviewable Decisions' 'immigration Assessment Authority Review' 'review Material' 'jurisdictional Error' 'materiality' 'safe Haven Enterprise Visa' 'complementary Protection']
['migration Law' 'administrative Law'] ['fast Track Reviewable Decisions' 'immigration Assessment Authority Review' 'review Material' 'jurisdictional Error' 'materiality' 'safe Haven Enterprise Visa' 'complementary Protection']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal

Legal Issues

  1. 1 ["Whether the Immigration Assessment Authority's review under s 473CC of the Migration Act 1958 (Cth) miscarried because the Secretary failed to give review material required by s 473CB(1)(c)." 'Whether material concerning the protection claims of BBI18 and BBJ18 was relevant review material for the review of the refusal decision concerning the BAK18 appellants.' 'Whether the IAA failed to properly apply s 473DD when assessing new information concerning the Ocean 12 Statement.' 'Whether any statutory non-compliance was material so as to amount to jurisdictional error.']

Ratio Decidendi

The material concerning the claims of BBI18 and BBJ18 was in the Secretary's possession and was relevant to the review of the refusal decision concerning the BAK18 appellants because the claims arose from the same or overlapping family factual matrix and had been treated by a Departmental delegate as inter-dependent family claims. The failure to provide that material to the IAA as review material under s 473CB(1)(c) meant the IAA's review miscarried. It was not possible to say the failure could not have made a difference, so the breach was material and amounted to jurisdictional error. The Federal Circuit Court erred by failing to find that jurisdictional error.

Court Disposition

Appeal allowed; Federal Circuit Court orders set aside; constitutional writs issued quashing the IAA decision and matter remitted to the IAA; costs ordered against the first respondent.

Orders

  • ['The appeal is allowed.' 'The orders of the Federal Circuit Court of Australia made on 2 October 2018 are set aside.' 'Constitutional writs issue quashing the decision of the Immigration Assessment Authority made on 28 February 2018 and remitting the matter to the Authority for determination of the decision...