Dang v Administrative Appeals Tribunal [2019] FCAFC 220

Dang v Administrative Appeals Tribunal [2019] FCAFC 220

The appeal was allowed because the Tribunal failed to afford procedural fairness by not disclosing the existence of the s 375A certificate and by proceeding on cost figures in the July Report without giving the appellant a fair opportunity to understand and challenge the underlying costing information. That breach was material: disclosure could realistically have led to scrutiny, further documents, and submissions capable of producing a different outcome on the cl 4007(2) waiver. The first two grounds failed because the appellant did not establish that describing the son's condition as Down syndrome with moderate intellectual impairment was insufficiently particular for cl 4007(1)(c), or...

Jurisdiction
Australia
Judgment Date
11 December 2019
Procedural Posture
Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application / Full Court Appeal
Outcome
Appeal allowed; Federal Circuit Court orders set aside; matter remitted to the Administrative Appeals Tribunal for determination according to law; Minister ordered to pay costs.
Legal Topics
['health Criteria for Visa Grant' 'medical Officer of the Commonwealth Opinion' 'pic 4007' 'health Waiver' 'procedural Fairness' 'section 375 a Certificate' 'jurisdictional Error' 'materiality']
['migration Law' 'administrative Law' 'judicial Review'] ['health Criteria for Visa Grant' 'medical Officer of the Commonwealth Opinion' 'pic 4007' 'health Waiver' 'procedural Fairness' 'section 375 a Certificate' 'jurisdictional Error' 'materiality']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application / Full Court Appeal

Legal Issues

  1. 1 ["Whether the Medical Officer's assessment sufficiently identified the specific nature and extent of the appellant's son's condition for the purposes of cl 4007(1)(c) of Schedule 4 to the Migration Regulations 1994 (Cth)." "Whether the Medical Officer's assessment was based on medical information that was sufficiently current." 'Whether the Tribunal denied procedural fairness by failing to disclose that a certificate under s 375A of the Migration Act 1958 (Cth) prevented access to information used to determine likely costs to the Australian community.' 'Whether any denial of procedural fairness was material because compliance could realistically have resulted in a different decision.']

Ratio Decidendi

The appeal was allowed because the Tribunal failed to afford procedural fairness by not disclosing the existence of the s 375A certificate and by proceeding on cost figures in the July Report without giving the appellant a fair opportunity to understand and challenge the underlying costing information. That breach was material: disclosure could realistically have led to scrutiny, further documents, and submissions capable of producing a different outcome on the cl 4007(2) waiver. The first two grounds failed because the appellant did not establish that describing the son's condition as Down syndrome with moderate intellectual impairment was insufficiently particular for cl 4007(1)(c), or...

Court Disposition

Appeal allowed; Federal Circuit Court orders set aside; matter remitted to the Administrative Appeals Tribunal for determination according to law; Minister ordered to pay costs.

Orders

  • ['The appeal be allowed.' 'Orders 2 and 3 made by the Federal Circuit Court on 27 February 2019 be set aside.' 'The matter be remitted to the Administrative Appeals Tribunal for determination according to law.' "The second respondent pay the appellant's costs of the proceedings before the Federal Circuit Court and...