AQP15 v Minister for Immigration and Border Protection (No 2)

The appellant, AQP15, appealed against a decision of the Federal Circuit Court of Australia dismissing his application for review of a decision of the Tribunal to affirm a decision of the delegate to refuse him a protection visa. The appellant, a national and citizen of Sri Lanka, contended that the Tribunal erred in concluding that he did not satisfy the criteria for the grant of a protection visa. Specifically, he argued that the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) by not inviting him to respond to the issue of whether he could provide a “surety” to obtain bail if placed in custody on return to Sri Lanka. The central legal issue was whether the Tribunal erred in its reasoning and breached s 425 by assuming a surety would be available for bail without providing the appellant an opportunity to respond to this issue.

The court found that the Tribunal did indeed err in its reasoning and breached s 425. The Tribunal's assumption that a relative of the appellant would provide surety for his bail was made without a proper evidentiary foundation and formed a critical part of the Tribunal's conclusion that the appellant did not satisfy the criteria for the grant of a visa. This assumption was not an issue dipositive of the delegate’s decision such that the appellant would have been on notice that it could form a critical plank in the Tribunal’s reasoning. This conclusion followed from similar findings in SZTQS and ABA15, where the Tribunal had also failed to raise the issue of a surety for bail with the appellant. Consequently, the court held that the Tribunal’s failure to comply with s 425 rendered its decision reviewable and the appeal was allowed.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs. The court's decision underscores the importance of procedural fairness in migration cases, particularly in ensuring that all critical assumptions are properly founded and that applicants are given a fair opportunity to respond to issues that may impact their case.