AFK16 v Minister for Immigration & Anor (No 2)

This matter concerned an application for judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse a protection visa. The applicant, AFK16, alleged that the IAA's decision was affected by jurisdictional error. The primary grounds for this allegation were that the IAA had not been provided with all relevant material held by the Department of Immigration and Border Protection, and that the IAA had failed to provide the applicant with country information for comment.

The court was required to determine whether the IAA had failed to comply with its statutory obligations under Part 7AA of the Migration Act 1958 (Cth) in its review process. Specifically, the court had to consider the scope of the Secretary's duty to provide material to the IAA under section 473CB, and the IAA's obligations regarding the provision of new information to a referred applicant under sections 473DB, 473DC, 473DD, and 473DE. The central question was whether the IAA's process, as conducted, met the requirements of the Act, particularly concerning the applicant's right to natural justice.

The court reasoned that section 473CB mandates the Secretary to provide the IAA with specific categories of material, including any other material considered relevant by the Secretary. Furthermore, while section 473DB states that the IAA must review decisions on the papers without accepting or requesting new information, section 473DC permits the IAA to obtain new information if it considers it relevant. Crucially, section 473DE requires the IAA to provide the referred applicant with particulars of any new information that is to be considered under section 473DD and would be the reason, or part of the reason, for affirming the decision, and to invite comments. The court found that the applicant had not been provided with certain country information that was considered by the IAA and which formed part of the basis for affirming the decision, thereby breaching the requirements of section 473DE.

The court concluded that the IAA had committed a jurisdictional error by failing to provide the applicant with particulars of the relevant country information and an opportunity to comment on it, as required by section 473DE of the Migration Act 1958 (Cth). Accordingly, the court set aside the IAA's decision and remitted the matter to the IAA for redetermination according to law.