MZARM v Minister for Immigration and Border Protection (No 2) [2020] FCA 1167

MZARM v Minister for Immigration and Border Protection (No 2) [2020] FCA 1167

Although the Tribunal's failure to inform the appellant of the invalid s 438 certificate denied procedural fairness, the denial was not material because the notified emails from November 2013 were overtaken by more current information before the Tribunal, including departmental movement records, sentencing remarks and the appellant's own information, supporting the finding that Mr V had returned to Colombia by January 2014. It was improbable, and therefore not a realistic possibility, that taking the notified information into account would have changed the Tribunal's decision. Section 424A(1) was not engaged by the departmental movement records because those records were not themselves...

Jurisdiction
Australia
Judgment Date
14 August 2020
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Proceedings / Appeal From MZARM V Minister for Immigration & Anor [2018] FCCA 965
Outcome
Appeal dismissed with costs.
Legal Topics
['protection Visa Refusal' 'migration Act 1958 (cth) S 438 Certificate' 'materiality of Procedural Fairness Denial' 'migration Act 1958 (cth) S 424 A' 'departmental Movement Records']
['migration Law' 'administrative Law' 'procedural Fairness'] ['protection Visa Refusal' 'migration Act 1958 (cth) S 438 Certificate' 'materiality of Procedural Fairness Denial' 'migration Act 1958 (cth) S 424 A' 'departmental Movement Records']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Proceedings / Appeal From MZARM V Minister for Immigration & Anor [2018] FCCA 965

Legal Issues

  1. 1 ["Whether the Tribunal's failure to inform the appellant of the existence of an invalid s 438 certificate was a denial of procedural fairness that was material to the Tribunal's decision." "Whether there was a realistic possibility that the Tribunal's decision could have been different if it had taken the notified information into account." 'Whether the Tribunal was required by s 424A(1) of the Migration Act 1958 (Cth) to invite the appellant to comment on departmental movement records indicating that Mr V departed Australia in January 2014.']

Ratio Decidendi

Although the Tribunal's failure to inform the appellant of the invalid s 438 certificate denied procedural fairness, the denial was not material because the notified emails from November 2013 were overtaken by more current information before the Tribunal, including departmental movement records, sentencing remarks and the appellant's own information, supporting the finding that Mr V had returned to Colombia by January 2014. It was improbable, and therefore not a realistic possibility, that taking the notified information into account would have changed the Tribunal's decision. Section 424A(1) was not engaged by the departmental movement records because those records were not themselves...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed.' 'The Appellant pay the costs of the appeal of the First Respondent.']