EEP18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 682

EEP18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 682

Leave to rely on the new grounds was in the interests of justice because the Minister asserted no particular prejudice and one ground had merit. Ground 1 failed because the assertion that members of an en masse returnee group could all be imputed with political opinion due to one member being a person of interest was new information, not merely a submission on existing DFAT material. Ground 2 succeeded because, properly read, the Authority refused to consider the new information that the appellant's father was killed by the Sri Lankan Army by reference to exceptional circumstances under s 473DD(a) but did not make findings directed to s 473DD(b), especially s 473DD(b)(ii). That error was...

Jurisdiction
Australia
Judgment Date
22 June 2023
Procedural Posture
Migration Appeal From Orders of the Federal Circuit Court of Australia Affirming a Decision of the Immigration Assessment Authority to Affirm a Delegate's Refusal to Grant a Protection Visa / Substantive Appeal in the Federal Court of Australia; Leave Granted to Rely on an Amended Notice of Appeal
Outcome
Appeal allowed with costs.
Legal Topics
['protection Visas' 'safe Haven Enterprise Visa' 'immigration Assessment Authority' 'new Information' 'migration Act 1958 (cth) S 473 Dd' 'jurisdictional Error' 'natural Justice' 'refugee Criterion' 'complementary Protection']
['migration Law' 'administrative Law' 'judicial Review'] ['protection Visas' 'safe Haven Enterprise Visa' 'immigration Assessment Authority' 'new Information' 'migration Act 1958 (cth) S 473 Dd' 'jurisdictional Error' 'natural Justice' 'refugee Criterion' 'complementary Protection']

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Procedural Posture

Migration Appeal From Orders of the Federal Circuit Court of Australia Affirming a Decision of the Immigration Assessment Authority to Affirm a Delegate's Refusal to Grant a Protection Visa / Substantive Appeal in the Federal Court of Australia; Leave Granted to Rely on an Amended Notice of Appeal

Legal Issues

  1. 1 ["Whether the Immigration Assessment Authority erred in treating the appellant's submission about imputed political opinion from en masse processing of returnees as new information and failing to consider it substantively." "Whether the Immigration Assessment Authority erred by failing to address the criteria in s 473DD(b) of the Migration Act 1958 (Cth) when refusing to consider new information that the appellant's father was killed by the Sri Lankan Army." 'Whether leave should be granted to rely on new grounds of appeal not advanced before the primary judge.']

Ratio Decidendi

Leave to rely on the new grounds was in the interests of justice because the Minister asserted no particular prejudice and one ground had merit. Ground 1 failed because the assertion that members of an en masse returnee group could all be imputed with political opinion due to one member being a person of interest was new information, not merely a submission on existing DFAT material. Ground 2 succeeded because, properly read, the Authority refused to consider the new information that the appellant's father was killed by the Sri Lankan Army by reference to exceptional circumstances under s 473DD(a) but did not make findings directed to s 473DD(b), especially s 473DD(b)(ii). That error was...

Court Disposition

Appeal allowed with costs.

Orders

  • ['The name of the first respondent is changed to Minister for Immigration, Citizenship and Multicultural Affairs.' 'Leave to rely on the draft amended notice of appeal annexed to the affidavit of Carina Ford affirmed on 31 October 2022 be granted.' 'The appeal be allowed.' 'Order 1 of the orders of the Federal...