Avj17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In this case, the appellant, a citizen of Bangladesh, sought a protection visa from the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The appellant arrived in Australia by boat in April 2013 and applied for a protection visa on 23 July 2013. The Minister's delegate refused the application on 3 July 2015, and the appellant appealed to the Administrative Appeals Tribunal. The Tribunal affirmed the delegate's decision on 27 January 2017. The appellant appealed to the Federal Circuit Court of Australia, which was then appealed to the High Court of Australia.

The legal issues before the court were whether the Administrative Appeals Tribunal's reliance on a country information report containing a factual error constituted a constructive failure to exercise jurisdiction and, if so, whether that error was material to the outcome of the decision.

The court found that the Administrative Appeals Tribunal's reliance on the country information report, which contained an inaccurate reference to Bangladeshi law, did not constitute a constructive failure to exercise jurisdiction. The court noted that a constructive failure to exercise jurisdiction describes a variety of errors, but invariably it must involve a failure on the part of the decision-maker to perform the statutory function. Mere error of fact does not constitute such a failure. The court also found that even if materiality did fall to be separately considered, those matters were questions of fact properly left for the Tribunal on remittal in assessing the claim which arose on the materials. It was not appropriate for a supervising court assessing materiality to attempt to place itself in the mind of the Tribunal; to do so would bring the court impermissibly into the merits of the decision.

The court dismissed the appeal with costs. The appellant was ordered to pay the first respondent's costs of the appeal.