BYMD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 936

BYMD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 936

Procedural fairness was denied to the applicant because the Tribunal failed to put him on notice regarding whether the best interests of his son would be considered, failed to afford him opportunity to respond to adverse findings regarding return to Ethiopia and country information sourced by the Tribunal, thus conducting review on a different basis from that informing the original delegate's decision. Such failures constituted jurisdictional error and necessitated the decision being set aside.

Parties
Applicant: BYMD; First Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Second Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
15 August 2022
Procedural Posture
Judicial Review / Final Judgment
Outcome
Application allowed in part; decision of Tribunal set aside; matter remitted for re-determination; costs awarded to applicant.
Legal Topics
Procedural Fairness, Visa Cancellation, Jurisdictional Error, Non Refoulement, Community Expectations
Migration Law Administrative Law Human Rights Law Procedural Fairness Visa Cancellation Jurisdictional Error Non Refoulement Community Expectations

Case Brief

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Parties

BYMD

Applicant

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

First Respondent

Administrative Appeals Tribunal

Second Respondent

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether the applicant was denied procedural fairness in the Tribunal review
  2. 2 Whether the Tribunal failed to consider the best interests of minor children
  3. 3 Whether the applicant should have had opportunity to respond to adverse material sourced by the Tribunal

Ratio Decidendi

Procedural fairness was denied to the applicant because the Tribunal failed to put him on notice regarding whether the best interests of his son would be considered, failed to afford him opportunity to respond to adverse findings regarding return to Ethiopia and country information sourced by the Tribunal, thus conducting review on a different basis from that informing the original delegate's decision. Such failures constituted jurisdictional error and necessitated the decision being set aside.

Court Disposition

Application allowed in part; decision of Tribunal set aside; matter remitted for re-determination; costs awarded to applicant.

Orders

  • A writ of certiorari be issued to the second respondent quashing its decision made on 21 September 2021 to affirm the mandatory cancellation of the applicant's Subclass 200 visa.
  • The matter be remitted to the second respondent, differently constituted, for determination according to law.