DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 862

DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 862

Section 500(6H) of the Migration Act 1958 (Cth) does not always require prior notice of the source of oral information to be given to the Minister in order for the Tribunal to have regard to that information. The Tribunal erred in construing s 500(6H) as always requiring identification of the witness providing oral evidence; the proper construction requires identification of the source only where critical to the sufficiency of notice. The Tribunal’s contrary approach involved jurisdictional error and denial of procedural fairness, warranting the setting aside of its decision.

Jurisdiction
Australia
Judgment Date
28 July 2021
Procedural Posture
Judicial Review / First Instance Judgment on Application for Extension of Time and Substantive Review
Outcome
Application allowed; extension of time granted; Tribunal's decision set aside; matter remitted; costs awarded to applicant.
Legal Topics
['procedural Fairness' 'tribunal Procedure' 'judicial Review' 'statutory Interpretation']
['migration Law' 'administrative Law'] ['procedural Fairness' 'tribunal Procedure' 'judicial Review' 'statutory Interpretation']

Case Brief

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Procedural Posture

Judicial Review / First Instance Judgment on Application for Extension of Time and Substantive Review

Legal Issues

  1. 1 ['Whether s 500(6H) of the Migration Act 1958 (Cth) requires that a written statement of the oral evidence to be relied on must identify both the content and the source (witness) for the Minister two business days before the hearing' 'Whether the Tribunal misconstrued s 500(6H) and denied the applicant procedural fairness by refusing to permit his partner to give evidence' 'Whether the sufficiency of notice under s 500(6H) always requires identification of the source of the oral information']

Ratio Decidendi

Section 500(6H) of the Migration Act 1958 (Cth) does not always require prior notice of the source of oral information to be given to the Minister in order for the Tribunal to have regard to that information. The Tribunal erred in construing s 500(6H) as always requiring identification of the witness providing oral evidence; the proper construction requires identification of the source only where critical to the sufficiency of notice. The Tribunal’s contrary approach involved jurisdictional error and denial of procedural fairness, warranting the setting aside of its decision.

Court Disposition

Application allowed; extension of time granted; Tribunal's decision set aside; matter remitted; costs awarded to applicant.

Orders

  • ["The applicant's application for an extension of time within which to apply for judicial review be granted." 'The decision of the second respondent is set aside.' 'The matter be remitted to the second respondent for determination according to law.' "The first respondent pay the applicant's costs." "Within 7 days...