DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170

DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170

The Issues Paper was not "before the Minister" merely because it was a Department-authored country information paper in existence at the time of the delegate's decision. In the Pt 7AA context, "before the Minister" means physically or literally before the decision-maker, not constructively known or within departmental control. The IAA therefore did not err in treating the Issues Paper as new information and declining to consider it under s 473DD. In any event, consideration of the relied-upon Kabul passage would have made no difference because the IAA relied on more recent country information and the Issues Paper did not materially conflict with its finding that Hazaras and Shias were not...

Jurisdiction
Australia
Judgment Date
10 October 2018
Procedural Posture
Migration Appeal From Dismissal of Judicial Review Application / Appeal to the Full Court of the Federal Court of Australia From the Federal Circuit Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['safe Haven Enterprise Visa' 'protection Visa' 'fast Track Review' 'immigration Assessment Authority' 'new Information Under Pt 7 AA of the Migration Act 1958 (cth)' 'meaning of "before the Minister"' 'jurisdictional Error' 'materiality']
['migration Law' 'administrative Law'] ['safe Haven Enterprise Visa' 'protection Visa' 'fast Track Review' 'immigration Assessment Authority' 'new Information Under Pt 7 AA of the Migration Act 1958 (cth)' 'meaning of "before the Minister"' 'jurisdictional Error' 'materiality']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Afghanistan: Hazaras Issues Paper was "new information" within the meaning of s 473DC(1) of the Migration Act 1958 (Cth).' 'Whether a Department-authored country information paper in existence at the time of the delegate\'s decision was constructively "before the Minister" when the delegate made the decision under s 65 of the Migration Act 1958 (Cth).' 'Whether the IAA erred in law by declining to consider the Issues Paper under s 473DD of the Migration Act 1958 (Cth).' 'Whether any alleged error was material and amounted to jurisdictional error.']

Ratio Decidendi

The Issues Paper was not "before the Minister" merely because it was a Department-authored country information paper in existence at the time of the delegate's decision. In the Pt 7AA context, "before the Minister" means physically or literally before the decision-maker, not constructively known or within departmental control. The IAA therefore did not err in treating the Issues Paper as new information and declining to consider it under s 473DD. In any event, consideration of the relied-upon Kabul passage would have made no difference because the IAA relied on more recent country information and the Issues Paper did not materially conflict with its finding that Hazaras and Shias were not...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' 'The appellant pay the costs of the first respondent, to be assessed if not agreed.']