BON17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1851

BON17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1851

The appeal was allowed because the Authority expressed satisfaction only as to the absence of exceptional circumstances under s 473DD(a) and did not make findings or substantively assess the new information against s 473DD(b)(i) and s 473DD(b)(ii), nor take the outcome of such an assessment into account when applying s 473DD(a). In light of AUS17, that failure meant the Authority did not perform the procedural duty imposed by s 473DD and its decision was affected by jurisdictional error. The Minister's Notice of Contention failed because an implied finding that the information was not credible personal information could not be discerned from the Authority's reasons.

Jurisdiction
Australia
Judgment Date
23 December 2020
Procedural Posture
Migration Appeal From a Judgment of the Federal Circuit Court Dismissing an Application for Judicial Review of a Decision of the Immigration Assessment Authority / Appeal
Outcome
Appeal allowed with costs; Minister granted leave to rely on the Notice of Contention, but the Notice of Contention failed.
Legal Topics
['safe Haven Enterprise Visa' 'fast Track Reviewable Decision' 'immigration Assessment Authority' 'new Information' 'exceptional Circumstances' 'jurisdictional Error' 'mandatory Relevant Consideration' 'legal Unreasonableness']
['migration Law' 'administrative Law'] ['safe Haven Enterprise Visa' 'fast Track Reviewable Decision' 'immigration Assessment Authority' 'new Information' 'exceptional Circumstances' 'jurisdictional Error' 'mandatory Relevant Consideration' 'legal Unreasonableness']

Case Brief

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Procedural Posture

Migration Appeal From a Judgment of the Federal Circuit Court Dismissing an Application for Judicial Review of a Decision of the Immigration Assessment Authority / Appeal

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred in not finding jurisdictional error where the Immigration Assessment Authority allegedly misconstrued s 473DD of the Migration Act 1958 (Cth) in considering new information.' 'Whether the Authority failed to assess new information against s 473DD(b)(i) and s 473DD(b)(ii) before determining under s 473DD(a) whether exceptional circumstances justified considering it.' 'Whether the Authority acted unreasonably by not exercising its power under s 473DC of the Migration Act 1958 (Cth) to get further new information.' 'Whether the Minister should have leave to rely on a Notice of Contention filed out of time.']

Ratio Decidendi

The appeal was allowed because the Authority expressed satisfaction only as to the absence of exceptional circumstances under s 473DD(a) and did not make findings or substantively assess the new information against s 473DD(b)(i) and s 473DD(b)(ii), nor take the outcome of such an assessment into account when applying s 473DD(a). In light of AUS17, that failure meant the Authority did not perform the procedural duty imposed by s 473DD and its decision was affected by jurisdictional error. The Minister's Notice of Contention failed because an implied finding that the information was not credible personal information could not be discerned from the Authority's reasons.

Court Disposition

Appeal allowed with costs; Minister granted leave to rely on the Notice of Contention, but the Notice of Contention failed.

Orders

  • ['Orders 2 and 3 of the orders of the Federal Circuit Court made on 28 July 2020 be set aside and in lieu thereof it be ordered that a writ of certiorari be issued to the Immigration Assessment Authority quashing its decision made on 29 July 2019 affirming the decision not to grant the appellant a Safe Haven...