Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194

Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194

The Federal Circuit Court erred in excluding as irrelevant and inadmissible the affidavit and documents subject to s 438 certification/notification; the content of such documents may be relevant in judicial review to assess whether there was in fact a denial of procedural fairness or whether discretionary grounds for refusing relief exist. The question is fact-specific and not determined solely by non-disclosure or invalidity of the certificate. The matter should be remitted for fresh determination in conformity with this reasoning.

Jurisdiction
Australia
Judgment Date
29 November 2017
Procedural Posture
Appeal / Full Federal Court Appeal From the Federal Circuit Court
Outcome
Appeal allowed. Judgment of FCC set aside. Matter remitted for rehearing.
Legal Topics
['procedural Fairness' 'judicial Review' 'certificates and Notifications Under Migration Act S 438' 'admissibility of Evidence in Judicial Review' 'jurisdictional Error']
['migration Law' 'administrative Law'] ['procedural Fairness' 'judicial Review' 'certificates and Notifications Under Migration Act S 438' 'admissibility of Evidence in Judicial Review' 'jurisdictional Error']

Case Brief

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Procedural Posture

Appeal / Full Federal Court Appeal From the Federal Circuit Court

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred in refusing to admit as evidence documents subject to a s 438 Migration Act certificate/notification in judicial review proceedings' 'Whether non-disclosure to an applicant of the existence of a s 438 certificate/notification by the Tribunal always constitutes a denial of procedural fairness amounting to jurisdictional error' 'Whether the contents of documents subject to such certificates/notifications may be relevant in a judicial review proceeding to show lack of practical injustice or to discretionary grounds for denial of relief']

Ratio Decidendi

The Federal Circuit Court erred in excluding as irrelevant and inadmissible the affidavit and documents subject to s 438 certification/notification; the content of such documents may be relevant in judicial review to assess whether there was in fact a denial of procedural fairness or whether discretionary grounds for refusing relief exist. The question is fact-specific and not determined solely by non-disclosure or invalidity of the certificate. The matter should be remitted for fresh determination in conformity with this reasoning.

Court Disposition

Appeal allowed. Judgment of FCC set aside. Matter remitted for rehearing.

Orders

  • ['The appeal be allowed.' 'The judgment of the Federal Circuit Court of Australia delivered on 30 January 2017 be set aside.' 'The matter be remitted to the Federal Circuit Court of Australia for hearing and determination according to law.' 'Within 14 days, parties file and serve submissions on costs (limited to 5...