CWP16 v Minister for Immigration and Border Protection [2018] FCAFC 28

CWP16 v Minister for Immigration and Border Protection [2018] FCAFC 28

The appeal failed because the delegate's statement at [60] did not constitute a finding, or a finding of a possibility, that the appellant had a past record of transporting goods for the LTTE. The later submission to that effect was information not before the Minister and was new information which the Authority was not permitted to consider unless the requirements of s 473DD were met. The Authority therefore did not fail to complete its review and did not commit jurisdictional error by excluding it. The 2009 registration document was not self-evidently evidence of monitoring, did not corroborate the claimed 2012 arrest or post-1997 monitoring, was not put that way before the delegate or...

Jurisdiction
Australia
Judgment Date
23 February 2018
Procedural Posture
Migration Appeal From Federal Circuit Court of Australia Dismissal of Application for Judicial Review / Appeal to the Full Court of the Federal Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['fast Track Reviewable Decision' 'immigration Assessment Authority' 'new Information' 'jurisdictional Error' 'protection Visa' 'safe Haven Enterprise Visa' 'failure to Consider Evidence']
['migration Law' 'administrative Law' 'judicial Review'] ['fast Track Reviewable Decision' 'immigration Assessment Authority' 'new Information' 'jurisdictional Error' 'protection Visa' 'safe Haven Enterprise Visa' 'failure to Consider Evidence']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court of Australia Dismissal of Application for Judicial Review / Appeal to the Full Court of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Immigration Assessment Authority erred in treating the assertion that the appellant had a past record of transporting goods for the LTTE as new information.' 'Whether the delegate had made a finding that the appellant may have transported goods for the LTTE such that the Authority failed to complete its review by not considering it.' 'Whether the Authority committed jurisdictional error by failing to refer to or consider the document entitled "Registration of Civilians Residing in \'512\' Brigade Area - 2009".' 'Whether that registration document was corroborative evidence of monitoring or attention by the 512 Brigade which the Authority was obliged to consider.']

Ratio Decidendi

The appeal failed because the delegate's statement at [60] did not constitute a finding, or a finding of a possibility, that the appellant had a past record of transporting goods for the LTTE. The later submission to that effect was information not before the Minister and was new information which the Authority was not permitted to consider unless the requirements of s 473DD were met. The Authority therefore did not fail to complete its review and did not commit jurisdictional error by excluding it. The 2009 registration document was not self-evidently evidence of monitoring, did not corroborate the claimed 2012 arrest or post-1997 monitoring, was not put that way before the delegate or...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appellant have leave to rely on his amended notice of appeal.' 'The appeal is dismissed.' "The appellant pay the first respondent's costs, as agreed or assessed."]