EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 174

EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 174

The appellant did not prove that the Part 1 entry interview audio recording was, at the time of referral or when later requested, in the Secretary's possession or control, so no contravention of s 473CB(1)(c) was established. Even if there had been a contravention, it could not have affected the outcome because the Authority had a contemporaneous written record of Part 1, knew the audio was unavailable, and was asked to decide the review on the basis of the appellant's later and substantially different account, including his admission that he had not told the complete truth at the entry interview.

Jurisdiction
Australia
Judgment Date
13 October 2020
Procedural Posture
Migration Appeal From Decision of the Federal Circuit Court Dismissing Judicial Review of an Immigration Assessment Authority Decision / Appeal to the Full Court of the Federal Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['fast Track Review' 'jurisdictional Error' 'section 473 Cb(1)(c) Review Material' 'immigration Assessment Authority' 'materiality' 'entry Interview Recording']
['migration' 'administrative Law'] ['fast Track Review' 'jurisdictional Error' 'section 473 Cb(1)(c) Review Material' 'immigration Assessment Authority' 'materiality' 'entry Interview Recording']

Case Brief

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Procedural Posture

Migration Appeal From Decision of the Federal Circuit Court Dismissing Judicial Review of an Immigration Assessment Authority Decision / Appeal to the Full Court of the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the Secretary failed to fulfil the duty under s 473CB(1)(c) of the Migration Act 1958 (Cth) by not providing the Immigration Assessment Authority with the audio recording of Part 1 of the appellant's entry interview." "Whether any contravention of s 473CB(1)(c) was sufficiently material to affect the outcome of the Authority's review and establish jurisdictional error."]

Ratio Decidendi

The appellant did not prove that the Part 1 entry interview audio recording was, at the time of referral or when later requested, in the Secretary's possession or control, so no contravention of s 473CB(1)(c) was established. Even if there had been a contravention, it could not have affected the outcome because the Authority had a contemporaneous written record of Part 1, knew the audio was unavailable, and was asked to decide the review on the basis of the appellant's later and substantially different account, including his admission that he had not told the complete truth at the entry interview.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal, to be fixed by way of a lump sum." 'On or before 27 October 2020, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the costs referred to above.' "In the absence of any agreement in...