CLM18 v Minister for Home Affairs [2019] FCAFC 170

CLM18 v Minister for Home Affairs [2019] FCAFC 170

The appeal was allowed because the Minister's response to the 19 September 2017 Departmental submission, including noting the proposed arrangements and adding a handwritten modification, showed that he made a personal procedural decision to consider lifting the s 46A(2) bar for the relevant cohort. The IRSR process therefore attracted procedural fairness because, assessed when that process was initiated, there was a non-de minimis possibility that it would prolong the appellant's detention. Since adverse country information was used in the IRSR assessment and not put to the appellant for comment, procedural fairness was breached. In relation to the s 46A(2C) revocation decision,...

Jurisdiction
Australia
Judgment Date
08 October 2019
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Proceedings / Appeal to the Full Court of the Federal Court of Australia
Outcome
Appeal allowed with costs.
Legal Topics
['s 46 A(2 C) Revocation of Determination Lifting Visa Application Bar' 'unauthorised Maritime Arrival' 'temporary Protection Visa and Safe Haven Enterprise Visa Applications' 'ministerial Personal Procedural Decision' 'informed Referral to Status Resolution Process' 'non Refoulement Obligations' 'immigration Detention and Removal']
['migration Law' 'administrative Law' 'procedural Fairness' 'constitutional Law and Human Rights'] ['s 46 A(2 C) Revocation of Determination Lifting Visa Application Bar' 'unauthorised Maritime Arrival' 'temporary Protection Visa and Safe Haven Enterprise Visa Applications' 'ministerial Personal Procedural Decision' 'informed Referral to Status Resolution Process' 'non Refoulement Obligations' 'immigration Detention and Removal']

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Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Proceedings / Appeal to the Full Court of the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the Minister's exercise of power under s 46A(2C) of the Migration Act 1958 (Cth) to revoke a determination allowing the appellant to apply for a TPV or SHEV was subject to procedural fairness." 'If procedural fairness applied to the s 46A(2C) revocation decision, whether the appellant was afforded procedural fairness.' "Whether the Minister's noting of and comment on a Departmental submission constituted a personal procedural decision to consider exercising powers under s 46A(2)." "Whether the IRSR process was subject to procedural fairness because it might prolong the appellant's detention." 'Whether procedural fairness was breached by reliance on adverse country information not put to the appellant for comment.']

Ratio Decidendi

The appeal was allowed because the Minister's response to the 19 September 2017 Departmental submission, including noting the proposed arrangements and adding a handwritten modification, showed that he made a personal procedural decision to consider lifting the s 46A(2) bar for the relevant cohort. The IRSR process therefore attracted procedural fairness because, assessed when that process was initiated, there was a non-de minimis possibility that it would prolong the appellant's detention. Since adverse country information was used in the IRSR assessment and not put to the appellant for comment, procedural fairness was breached. In relation to the s 46A(2C) revocation decision,...

Court Disposition

Appeal allowed with costs.

Orders

  • ['The appeal be allowed with costs.' 'Orders 2 and 3 made by the Federal Circuit Court of Australia on 7 May 2019 be set aside.' 'The parties bring in short minutes of order to give effect to these reasons within 21 days.']