DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148

DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148

The Secretary's conceded failure to provide the Appellant's residential address under s 473CB(1)(d) was non-compliance with a statutory precondition to the Authority exercising jurisdiction under Pt 7AA. The failure was material because the Authority attempted to contact the Appellant by email while he was in prison and unable to access the internet; if the Authority had known his residential address was a correctional centre, there was a realistic possibility it would have contacted him by other means, he would have provided new information and submissions, and the Authority's decision could have been different. The Authority therefore fell into jurisdictional error.

Jurisdiction
Australia
Judgment Date
01 September 2022
Procedural Posture
Migration Appeal From Dismissal of Application for Judicial Review / Appeal to the Full Court of the Federal Court of Australia
Outcome
Appeal allowed with costs.
Legal Topics
['safe Haven Enterprise Visa' 'fast Track Review' 'immigration Assessment Authority' 'jurisdictional Error' 'statutory Precondition' 'materiality' 'review Material' 'authorised Recipient']
['migration' 'administrative Law' 'judicial Review'] ['safe Haven Enterprise Visa' 'fast Track Review' 'immigration Assessment Authority' 'jurisdictional Error' 'statutory Precondition' 'materiality' 'review Material' 'authorised Recipient']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the Secretary's failure to comply with s 473CB(1)(d) of the Migration Act 1958 (Cth) by failing to provide the Authority with the Appellant's residential address was a failure to satisfy a precondition to the valid exercise of the Authority's decision-making power." 'Whether that non-compliance was material because it deprived the Appellant of a realistic possibility of a different outcome.' "Whether the Authority wrongly relied on the Appellant's appointment of Mr Pena-Rees as representative and authorised recipient after remittal."]

Ratio Decidendi

The Secretary's conceded failure to provide the Appellant's residential address under s 473CB(1)(d) was non-compliance with a statutory precondition to the Authority exercising jurisdiction under Pt 7AA. The failure was material because the Authority attempted to contact the Appellant by email while he was in prison and unable to access the internet; if the Authority had known his residential address was a correctional centre, there was a realistic possibility it would have contacted him by other means, he would have provided new information and submissions, and the Authority's decision could have been different. The Authority therefore fell into jurisdictional error.

Court Disposition

Appeal allowed with costs.

Orders

  • ['The appeal be allowed.' "The orders of the Federal Circuit and Family Court of Australia made on 24 January 2022 be set aside and in lieu thereof: (a) A writ of certiorari be issued quashing the decision of the Second Respondent dated 9 July 2020. (b) A writ of mandamus directed to the Second Respondent be issued...