GJM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 524

GJM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 524

The Authority erred by treating the 2017 ITJP Report as new information and concluding that it could not consider it, because the report had been before the Minister's delegate and therefore should have formed part of the material before the Authority on review. The error was material because, had the report not been excluded, the body of material before the Authority would have been different and there was a realistic possibility of a different outcome, particularly given the report's possible relevance to risk arising from a real or imputed LTTE connection. Accordingly, ground 2 was made out and the appeal was allowed.

Jurisdiction
Australia
Judgment Date
25 May 2023
Procedural Posture
Migration Appeal From Orders Dismissing an Application for Judicial Review of a Decision of the Immigration Assessment Authority Affirming Refusal of a Safe Haven Enterprise (subclass 790) Visa / Appeal Allowed
Outcome
Appeal allowed; decision of the Immigration Assessment Authority quashed and matter remitted for determination according to law.
Legal Topics
['safe Haven Enterprise Visa' 'immigration Assessment Authority' 'new Information' 'migration Act 1958 (cth) S 473 Dd' 'materiality of Jurisdictional Error' 'protection Visa Claims']
['migration' 'administrative Law' 'judicial Review'] ['safe Haven Enterprise Visa' 'immigration Assessment Authority' 'new Information' 'migration Act 1958 (cth) S 473 Dd' 'materiality of Jurisdictional Error' 'protection Visa Claims']

Case Brief

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Procedural Posture

Migration Appeal From Orders Dismissing an Application for Judicial Review of a Decision of the Immigration Assessment Authority Affirming Refusal of a Safe Haven Enterprise (subclass 790) Visa / Appeal Allowed

Legal Issues

  1. 1 ['Whether the Immigration Assessment Authority erred in treating the 2017 ITJP Report as new information for the purposes of s 473DD of the Migration Act 1958 (Cth).' 'Whether any error by the Authority in excluding the 2017 ITJP Report was material.' "Whether the Authority otherwise misapplied s 473DD in relation to the Bishop's Letter, Presidential Commission documents, ICRC documents and support letters." "Whether it was necessary to determine the appellant's ground alleging failure to consider all relevant claims."]

Ratio Decidendi

The Authority erred by treating the 2017 ITJP Report as new information and concluding that it could not consider it, because the report had been before the Minister's delegate and therefore should have formed part of the material before the Authority on review. The error was material because, had the report not been excluded, the body of material before the Authority would have been different and there was a realistic possibility of a different outcome, particularly given the report's possible relevance to risk arising from a real or imputed LTTE connection. Accordingly, ground 2 was made out and the appeal was allowed.

Court Disposition

Appeal allowed; decision of the Immigration Assessment Authority quashed and matter remitted for determination according to law.

Orders

  • ['The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.' 'The appeal be allowed.' "Orders 3 and 4 made by the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Div 2)) on 17 April 2020 be set aside and in lieu thereof...