CGX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1145

CGX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1145

The Authority failed to apply s 473DD according to law. It did not first assess all new information against s 473DD(b)(i) and s 473DD(b)(ii), addressed exceptional circumstances at the wrong point, treated inconsistency with earlier material as a reason to reject credibility at the preliminary filtering stage, and did not ask whether the information was capable of being believed. These errors amounted to a constructive failure to exercise the power conferred by s 473DD and were material because, as a matter of reasonable conjecture, the Authority might have reached a different decision about at least some of the new information and that may have affected the review outcome.

Jurisdiction
Australia
Judgment Date
27 September 2023
Procedural Posture
Migration Appeal From a Judgment of the Federal Circuit Court of Australia Dismissing Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise Visa / Appeal to the Federal Court of Australia
Outcome
Appeal allowed.
Legal Topics
['safe Haven Enterprise Visa' 'fast Track Reviewable Decision' 'immigration Assessment Authority' 'new Information' 'migration Act 1958 (cth) S 473 Dd' 'migration Act 1958 (cth) S 473 Dc' 'jurisdictional Error' 'materiality']
['migration Law' 'administrative Law' 'judicial Review'] ['safe Haven Enterprise Visa' 'fast Track Reviewable Decision' 'immigration Assessment Authority' 'new Information' 'migration Act 1958 (cth) S 473 Dd' 'migration Act 1958 (cth) S 473 Dc' 'jurisdictional Error' 'materiality']

Case Brief

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Procedural Posture

Migration Appeal From a Judgment of the Federal Circuit Court of Australia Dismissing Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise Visa / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Immigration Assessment Authority applied s 473DD of the Migration Act 1958 (Cth) according to law when declining to consider new information provided by the appellant.' 'Whether the Authority constructively failed to exercise the power conferred by s 473DD by addressing exceptional circumstances before assessing the criteria in s 473DD(b)(i) and s 473DD(b)(ii).' 'Whether the Authority applied the correct meaning of credible personal information under s 473DD(b)(ii).' "Whether any error in the Authority's application of s 473DD was material." 'Whether the Authority erred under s 473DC by treating exceptional circumstances as a precondition to getting new information.']

Ratio Decidendi

The Authority failed to apply s 473DD according to law. It did not first assess all new information against s 473DD(b)(i) and s 473DD(b)(ii), addressed exceptional circumstances at the wrong point, treated inconsistency with earlier material as a reason to reject credibility at the preliminary filtering stage, and did not ask whether the information was capable of being believed. These errors amounted to a constructive failure to exercise the power conferred by s 473DD and were material because, as a matter of reasonable conjecture, the Authority might have reached a different decision about at least some of the new information and that may have affected the review outcome.

Court Disposition

Appeal allowed.

Orders

  • ['The appellant have leave to rely on grounds 1-3, 5 and 6 of his notice of appeal.' 'The appeal be allowed.' 'The orders of the Federal Circuit Court of Australia made on 26 February 2020 be set aside, and in lieu thereof it be ordered that a writ of certiorari issue to the Immigration Assessment Authority quashing...