Awt19 v Minister for Immigration - [2020] FCCA 1748

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWT19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1748

Catchwords:
MIGRATION – Judicial review – Where the Authority affirmed the decision to refuse a protection visa – whether the Authority was not provided with all the “review material” – whether a record of interview is “review material” under s.473CB of the Act – whether the interview with the delegate was material provided by the applicant under s.473CB(1)(b) – where audio recording or accurate transcript unavailable – whether there was jurisdictional error in respect of the Authority proceeding to review the visa application in light of not having all of the review material – whether the Authority could invite the applicant to an interview to remedy the lack of review material being made available to it – whether the Authority misapplied s.473DC and s.473DD of the Act – whether breach of s.473CB was material to the outcome – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 473CB, 473CD, 473DC, 473DD.

Cases cited:

AOV18 v Minister for Home Affairs [2018] FCA 1871

BEL18 v Minister for Home Affairs [2018] FCA 2103

BRG18 v Minister for Immigration & Anor [2020] FCCA 806

Applicant:

AWT19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 506 of 2019

Judgment of:

Judge Obradovic

Hearing dates:

14 October 2019, 6 February 2020

Date of Last Submission:

20 March 2020

Delivered at:

Parramatta

Delivered on:

30 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Chia

Counsel for the Respondents:

Mr Smith

Solicitors for the Respondents:

Mills Oakley

ORDERS

A writ of certiorari issue, quashing the decision of the second respondent (Authority) dated 7 February 2019 to affirm the decision of a delegate (delegate’s decision) of the first respondent (Minister) to refuse to grant the applicant a safe haven enterprise visa.
A writ of mandamus issue, remitting the matter to the Authority and requiring it to determine according to law the application referred to it by the Minister under s.473C of the Migration Act 1958 (Cth) for review of the delegate’s decision.
A writ of prohibition issue, prohibiting the Minister and his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 1748
Decision Date: 30 June 2020

CaseChat Overview and Summary

The applicant, Awt19, sought judicial review of a decision by the Administrative Appeals Tribunal (the Authority) which affirmed the Minister for Immigration's refusal to grant a protection visa. The central dispute concerned whether the Authority had been provided with all the "review material" as required by the Migration Act 1958 (Cth).

The court was required to determine whether a record of interview constituted "review material" under section 473CB of the Act, and specifically whether an interview with the delegate was material provided by the applicant under section 473CB(1)(b). Further issues included whether the absence of an audio recording or accurate transcript of such an interview amounted to jurisdictional error, and whether the Authority could invite the applicant to an interview to remedy any deficiency in the review material. The court also considered whether the Authority had misapplied sections 473DC and 473DD of the Act, and whether any breach of section 473CB was material to the outcome.

Justice Obradovic found that a record of interview is indeed "review material" under section 473CB of the Act. The court reasoned that the Authority had a statutory obligation to consider all review material provided by the applicant. In this instance, the Authority proceeded to review the visa application without having been provided with the full record of the applicant's interview with the delegate, and without an accurate transcript or audio recording being available. This failure to obtain and consider the complete review material constituted a jurisdictional error. The Authority's subsequent invitation to the applicant for a further interview was found to be an attempt to remedy this deficiency, but it did not cure the initial jurisdictional error. The court concluded that the breach of section 473CB was material to the outcome of the review.

Jurisdictional error was established, and the decision of the Authority was set aside.

Orders