Zhao v Minister for Immigration and Border Protection [2019] FCA 1530

Zhao v Minister for Immigration and Border Protection [2019] FCA 1530

The appeal was dismissed because any procedural unfairness arising from the Tribunal's description or disclosure of the s 375A certificates was not material: the appellants were informed that the relevant folios were subject to s 375A, disclosure of the protected material was prohibited, and disclosure of the second certificate would not realistically have produced a different result because any MRT reference error could have been corrected or a new certificate issued. The challenged protected material did not affect the outcome: the Tribunal gave no weight to the Interpol Red Notice, the relationship material was irrelevant, and the 24 July 2014 email was not reliable or probative...

Jurisdiction
Australia
Judgment Date
17 September 2019
Procedural Posture
Appeal From Dismissal of an Application for Judicial Review of a Tribunal Decision Affirming Cancellation of a Subclass 801 (spouse) Visa / Appeal to the Federal Court of Australia From the Federal Circuit Court
Outcome
Appeal dismissed with costs.
Legal Topics
['s 375 a Certificates' 'procedural Fairness' 'jurisdictional Error' 'materiality' 'visa Cancellation' 'bogus Document' 'fact Finding']
['migration Law' 'administrative Law' 'judicial Review'] ['s 375 a Certificates' 'procedural Fairness' 'jurisdictional Error' 'materiality' 'visa Cancellation' 'bogus Document' 'fact Finding']

Case Brief

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Procedural Posture

Appeal From Dismissal of an Application for Judicial Review of a Tribunal Decision Affirming Cancellation of a Subclass 801 (spouse) Visa / Appeal to the Federal Court of Australia From the Federal Circuit Court

Legal Issues

  1. 1 ['Whether the Tribunal denied procedural fairness by not meaningfully informing the appellants of the existence and scope of two s 375A certificates and the material withheld under them.' 'Whether the second s 375A certificate was invalid because it was directed to the former Migration Review Tribunal after that tribunal had become part of the Administrative Appeals Tribunal.' 'Whether any breach of procedural fairness was material so as to constitute jurisdictional error.' 'Whether the Tribunal erred in a critical finding of fact by stating that there was no independent corroborative evidence that the first appellant did not have criminal convictions in China.']

Ratio Decidendi

The appeal was dismissed because any procedural unfairness arising from the Tribunal's description or disclosure of the s 375A certificates was not material: the appellants were informed that the relevant folios were subject to s 375A, disclosure of the protected material was prohibited, and disclosure of the second certificate would not realistically have produced a different result because any MRT reference error could have been corrected or a new certificate issued. The challenged protected material did not affect the outcome: the Tribunal gave no weight to the Interpol Red Notice, the relationship material was irrelevant, and the 24 July 2014 email was not reliable or probative...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellants pay the first respondent's costs of and incidental to the appeal to be fixed in the sum of $7,241."]