EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20

Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal From Orders Dismissing an Application for Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise Visa

Legal Issues

1. 1 ["Whether the Secretary's failure to provide the Immigration Assessment Authority with material provided by the appellant to the delegate under s 473CB(1)(b) of the Migration Act 1958 (Cth) could deprive the Authority of jurisdiction to conduct a Pt 7AA review." 'Whether, in the circumstances, failure to provide the Medical Documents prevented the Authority from conducting the review contemplated by Pt 7AA and amounted to jurisdictional error.' "Whether the Medical Documents could have affected the outcome of the Authority's review."]

Ratio Decidendi

The Secretary's failure to give the Authority the Medical Documents breached s 473CB(1)(b). Given the content of those documents, the appellant's claims of beatings and injury, and the Authority's reasons for rejecting those claims, the documents could have affected the outcome of the review. The Authority did not have the totality of the appellant's evidence before it and was prevented from conducting the review required by Pt 7AA. Jurisdictional error was therefore established.

Court Disposition

Appeal allowed with costs.

Orders

• ['The appeal be allowed.' 'The orders made by the Federal Circuit Court of Australia on 1 May 2018 be set aside.' 'A writ of certiorari be issued quashing the decision of the second respondent dated 10 October 2017.' 'The matter be remitted to the second respondent for determination according to law.' "The first...