EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180

EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180

The aspect of the Post-interview Submission concerning the appellant's claimed involvement with the Australian Tamil Congress, including the photograph, was new information because it was not before the delegate when the s 65 decision was made and the Authority considered it relevant by referring to and taking it into account. The Authority considered that new information without addressing the mandatory conditions in s 473DD. That failure was material because the Authority used the photograph to make an adverse credibility finding that formed part of its reasons for rejecting the appellant's claims, and it likely would have approached the material differently and given notice under s...

Jurisdiction
Australia
Judgment Date
19 October 2018
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia Concerning Refusal of an Application for a Protection Visa and Fast Track Review Under Pt 7 AA of the Migration Act 1958 (cth). / Appeal to the Full Court of the Federal Court of Australia From Dismissal of Judicial Review by the Federal Circuit Court.
Outcome
Appeal allowed.
Legal Topics
['protection Visa' 'safe Haven Enterprise Visa' 'fast Track Review' 'immigration Assessment Authority' 'new Information' 'jurisdictional Error' 'procedural Fairness' 'materiality']
['migration Law' 'administrative Law'] ['protection Visa' 'safe Haven Enterprise Visa' 'fast Track Review' 'immigration Assessment Authority' 'new Information' 'jurisdictional Error' 'procedural Fairness' 'materiality']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia Concerning Refusal of an Application for a Protection Visa and Fast Track Review Under Pt 7 AA of the Migration Act 1958 (cth). / Appeal to the Full Court of the Federal Court of Australia From Dismissal of Judicial Review by the Federal Circuit Court.

Legal Issues

  1. 1 ['Whether the Post-interview Submission, including the claim about involvement with the Australian Tamil Congress and the photograph, was "new information" for the purposes of Pt 7AA of the Migration Act 1958 (Cth).' 'Whether the Immigration Assessment Authority failed to comply with s 473DD by considering new information without first being satisfied that the statutory conditions were met.' "Whether the Authority's failure to comply with s 473DD was material and affected its decision by jurisdictional error." 'Whether the Federal Circuit Court erred in failing to find jurisdictional error.']

Ratio Decidendi

The aspect of the Post-interview Submission concerning the appellant's claimed involvement with the Australian Tamil Congress, including the photograph, was new information because it was not before the delegate when the s 65 decision was made and the Authority considered it relevant by referring to and taking it into account. The Authority considered that new information without addressing the mandatory conditions in s 473DD. That failure was material because the Authority used the photograph to make an adverse credibility finding that formed part of its reasons for rejecting the appellant's claims, and it likely would have approached the material differently and given notice under s...

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The orders of the Federal Circuit Court of Australia made on 7 February 2018 be set aside and in lieu thereof it be ordered that the decision of the Immigration Assessment Authority dated 23 August 2017 be set aside.' 'The matter be remitted to the Immigration Assessment Authority for...