AZAEF v Minister for Immigration and Border Protection

The case of AZAEF v Minister for Immigration and Border Protection involved an appeal by an infant child and her half-brother against a decision of the Federal Circuit Court, which rejected their application for protection visas. The court was required to decide whether the primary judge erred in not holding that the independent protection assessor was obliged to give notice to the appellant or her guardian that he did not believe the half-brother’s evidence, whether the primary judge erred in not holding that the Minister breached his duties to the appellant by not taking steps to investigate and obtain material in relation to the appellant, and whether the primary judge erred in not finding that the assessor made inconsistent findings of fact.

The court found that the primary judge erred in not holding that the independent protection assessor was obliged to give notice to the appellant or her guardian that he did not believe the half-brother’s evidence. The court held that the procedural fairness obligations owed to the appellant were owed to her guardian, and that the assessor should have put the guardian on notice of his disbelief of the half-brother’s evidence and his intention not to rely upon it in relation to the appellant’s case. The court also found that the primary judge erred in not holding that the Minister breached his duties to the appellant by not taking steps to investigate and obtain material in relation to the appellant. The court held that the Minister had a duty to take his own steps to investigate and obtain material in respect of the appellant’s status, and that he had breached this duty by allowing the appellant’s half-brother to make claims and present material on her behalf.

The court found that the primary judge did not err in not finding that the assessor made inconsistent findings of fact. The court held that the assessor’s findings were consistent, as he did not accept that the appellant would face persecution in Vietnam, and that the appellant’s claims were not supported by the evidence.

The court allowed the appeal, set aside the judgment and orders made by the primary judge, and in lieu of those orders, made new orders. The court declared that the independent protection assessor failed to observe the requirements of procedural fairness, and restrained the Minister from removing the appellant or causing or allowing her to be removed from Australia until her claims to be a person to whom Australia has protection obligations have been assessed according to law, and the Minister has decided that the appellant is not a person to whom Australia has protection obligations. The court also ordered the Minister to pay the appellant’s costs of the proceeding and the appeal.