EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1000

EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1000

Once the appellant submitted the support letters and the Tribunal had concerns that they may have been fraudulently created by the appellant, the genuineness of the letters became an issue that the Tribunal was required to raise with him, either under s 425 of the Migration Act 1958 (Cth) or under the natural justice hearing rule. The Tribunal had not sufficiently alerted the appellant to any concern about the genuineness of the letters, and the failure was material because it deprived him of a realistic possibility of a different outcome. The Tribunal therefore committed jurisdictional error, and the primary judge erred in concluding otherwise.

Jurisdiction
Australia
Judgment Date
29 August 2022
Procedural Posture
Migration Appeal From the Federal Circuit and Family Court of Australia (division 2) Concerning Judicial Review of an Administrative Appeals Tribunal Protection Visa Decision / Appeal Allowed
Outcome
Appeal allowed; orders of the primary judge set aside; Tribunal decision set aside; matter remitted to the Administrative Appeals Tribunal for determination according to law; first respondent ordered to pay costs.
Legal Topics
['protection Visa' 'administrative Appeals Tribunal' 'jurisdictional Error' 'natural Justice Hearing Rule' 'migration Act 1958 (cth) S 425' 'fraud Finding Concerning Support Letters']
['migration' 'administrative Law' 'procedural Fairness'] ['protection Visa' 'administrative Appeals Tribunal' 'jurisdictional Error' 'natural Justice Hearing Rule' 'migration Act 1958 (cth) S 425' 'fraud Finding Concerning Support Letters']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Circuit and Family Court of Australia (division 2) Concerning Judicial Review of an Administrative Appeals Tribunal Protection Visa Decision / Appeal Allowed

Legal Issues

  1. 1 ['Whether the Tribunal failed to accord the appellant procedural fairness by making a finding that support letters were fraudulently created without first raising concerns about their genuineness with the appellant.' 'Whether the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) by not inviting the appellant to give evidence and present arguments on the issue of the genuineness of the support letters.' 'Whether any failure to comply with s 425 or procedural fairness was material and amounted to jurisdictional error.']

Ratio Decidendi

Once the appellant submitted the support letters and the Tribunal had concerns that they may have been fraudulently created by the appellant, the genuineness of the letters became an issue that the Tribunal was required to raise with him, either under s 425 of the Migration Act 1958 (Cth) or under the natural justice hearing rule. The Tribunal had not sufficiently alerted the appellant to any concern about the genuineness of the letters, and the failure was material because it deprived him of a realistic possibility of a different outcome. The Tribunal therefore committed jurisdictional error, and the primary judge erred in concluding otherwise.

Court Disposition

Appeal allowed; orders of the primary judge set aside; Tribunal decision set aside; matter remitted to the Administrative Appeals Tribunal for determination according to law; first respondent ordered to pay costs.

Orders

  • ['The appeal be allowed.' "The orders made by the primary judge on 19 November 2021 be set aside and in lieu thereof it be ordered that: (a) The decision of the Administrative Appeals Tribunal dated 8 September 2020 be set aside. (b) The matter be remitted to the Administrative Appeals Tribunal for determination...