CHZ19 v Minister for Home Affairs (No 2) [2019] FCA 1112

CHZ19 v Minister for Home Affairs (No 2) [2019] FCA 1112

Although the Tribunal breached procedural fairness by failing to provide the Allegation document to the appellant, the appellant did not prove materiality. In the statutory context, material adverse information relied on by the Tribunal would have required particulars under s 359A and would be expected to appear in the Tribunal's reasons; the reasons disclosed the matters that influenced the decision and the appellant did not show that disclosure could realistically have produced a different outcome. The second Tribunal's reasons and hearing transcript did not establish that it adopted the first Tribunal's decision without independent consideration, failed to perform its statutory...

Jurisdiction
Australia
Judgment Date
19 July 2019
Procedural Posture
Migration Appeal From a Federal Circuit Court Decision Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Spousal Visa / Appeal in the Federal Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['non Disclosure of Adverse Material Before the Administrative Appeals Tribunal' 'materiality of Breach of Procedural Fairness' 'jurisdictional Error' 'de Novo Review by the Tribunal' 'reasonable Apprehension of Bias' 'waiver of Visa Requirement for Compassionate or Compelling Circumstances']
['migration Law' 'administrative Law' 'procedural Fairness'] ['non Disclosure of Adverse Material Before the Administrative Appeals Tribunal' 'materiality of Breach of Procedural Fairness' 'jurisdictional Error' 'de Novo Review by the Tribunal' 'reasonable Apprehension of Bias' 'waiver of Visa Requirement for Compassionate or Compelling Circumstances']

Case Brief

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Procedural Posture

Migration Appeal From a Federal Circuit Court Decision Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Spousal Visa / Appeal in the Federal Court of Australia

Legal Issues

  1. 1 ['Whether failure to provide the appellant with the Allegation document, which was adverse and before the Tribunal but not certified under s 375A or s 376 of the Migration Act 1958 (Cth), amounted to material denial of procedural fairness and jurisdictional error.' "Whether the second Tribunal constructively failed to exercise jurisdiction or gave rise to a reasonable apprehension of bias by adopting or copying the first Tribunal's reasoning rather than conducting a de novo review." "Whether the Tribunal's failure to call the appellant's wife or to accept production of the appellant's phone supported jurisdictional error or apprehended bias."]

Ratio Decidendi

Although the Tribunal breached procedural fairness by failing to provide the Allegation document to the appellant, the appellant did not prove materiality. In the statutory context, material adverse information relied on by the Tribunal would have required particulars under s 359A and would be expected to appear in the Tribunal's reasons; the reasons disclosed the matters that influenced the decision and the appellant did not show that disclosure could realistically have produced a different outcome. The second Tribunal's reasons and hearing transcript did not establish that it adopted the first Tribunal's decision without independent consideration, failed to perform its statutory...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant do pay the first respondent's costs of the application to be assessed if not agreed." 'The costs of the appeal be assessed on a lump sum basis if not agreed.' "If it is necessary to fix costs then the first respondent may file and serve an affidavit constituting a Costs...