BMV16 v Minister for Home Affairs

Link copied
Case Copied 64 min read

FEDERAL COURT OF AUSTRALIA

BMV16 v Minister for Home Affairs [2018] FCAFC 90

Appeal from: BMV16 v Minister for Immigration & Anor [2017] FCCA 3045
File number: VID 1414 of 2017
Judges: MORTIMER, MOSHINSKY AND THAWLEY JJ
Date of judgment: 21 June 2018
Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – where Federal Circuit Court dismissed an application for judicial review of a decision of the Immigration Assessment Authority to affirm a fast track reviewable decision of the Minister – where Authority made an oral invitation to the appellant to comment on new information at an interview – where invitation required appellant to provide comments immediately – whether the invitation to comment on new information complied with s 473DF(2) of the Migration Act 1958 (Cth) and r 4.42 of the Migration Regulations 1994 (Cth) – whether, in the circumstances, it was legally unreasonable for the Authority to invite the appellant to comment on new information immediately at the interview
Legislation:

Migration Act 1958 (Cth), ss 46A, 359B, 424B; Part 7AA, ss 473BA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DE(1)(c), 473DF, 473DF(2), 473DF(3), 473FA

Migration Regulations 1994 (Cth), r 4.42

Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Seeker Legacy Caseload) Bill 2014 (Cth)
Cases cited:

DBE16 v Minister for Immigration and Border Protection [2017] FCA 942

Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189

M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333

Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

SZLWQ v Minister for Immigration and Citizenship (2008) 172 FCR 452

W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 89; 67 ALD 757
Date of hearing: 29 May 2018
Date of last submissions: 8 June 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 103
Counsel for the Appellant: Mr M L L Albert and Mr N Wallwork
Counsel for the Respondents: Mr G R Kennett SC and Mr N Wood
Solicitor for the Respondents: DLA Piper Australia

ORDERS

VID 1414 of 2017
BETWEEN:

BMV16

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGES:

MORTIMER, MOSHINSKY AND THAWLEY JJ

DATE OF ORDER:

21 JUNE 2018

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Federal Circuit Court of Australia be set aside, and in lieu thereof:

(a)order that the first respondent pay the applicant’s costs;

(b)there issue absolute in the first instance:

(i)a writ of certiorari directed to the second respondent to quash the decision of 14 June 2016; and

(ii)a…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read BMV16 v Minister for Home Affairs and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2018] FCAFC 90
Decision Date

CaseChat Overview and Summary

In the matter of BMV16 v Minister for Home Affairs, the appeal arose from a decision by the Federal Circuit Court of Australia to dismiss an application for judicial review. The appellant challenged the Immigration Assessment Authority's affirmation of a fast-track reviewable decision made by the Minister for Home Affairs. The crux of the dispute was whether the Authority's requirement for the appellant to immediately provide comments on new information during an interview complied with the relevant legislative and regulatory provisions. Specifically, the court considered whether the invitation to comment on new information complied with section 473DF(2) of the Migration Act 1958 (Cth) and regulation 4.42 of the Migration Regulations 1994 (Cth). Additionally, the court examined whether it was legally unreasonable for the Authority to invite the appellant to comment immediately at the interview.

The legal issues before the court involved the interpretation and application of the statutory and regulatory requirements for providing new information to an appellant in a migration context. The court had to determine whether the Authority's immediate invitation to comment on new information during the interview was in accordance with the law and whether this process deprived the appellant of a fair opportunity to consider and respond to the new information. The court held that the appellant was denied the opportunity that section 473DE of the Migration Act was intended to provide, which was to consider the new information before responding. Consequently, the court found the Authority's immediate invitation to comment on new information to be legally unreasonable.

The court allowed the appeal, setting aside the Federal Circuit Court's decision. It ordered that the Minister for Home Affairs pay the appellant's costs and issued a writ of certiorari to quash the decision of 14 June 2016. Additionally, the court issued a writ of mandamus directing the Minister to exercise the power under section 473CC of the Migration Act according to law. The court also provided detailed directions for the fixing of the appellant's costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Federal Circuit Court of Australia be set aside, and in lieu thereof:

(a) order that the first respondent pay the applicant’s costs;

(b) there issue absolute in the first instance:

(i) a writ of certiorari directed to the second respondent to quash the decision of 14 June 2016; and

(ii) a writ of mandamus directed to the second respondent to exercise the power under s 473CC of the Migration Act 1958 (Cth) according to law.

3. The first respondent pay the appellant’s costs of the appeal to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

4. Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the appellant’s costs.

5. In the absence of any agreement pursuant to paragraph 4 of these orders, within 21 days the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).

6. Within a further 14 days, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

7. In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the appellant’s costs be referred to a Registrar for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The primary judge also made the observation that the appellant engaged meaningfully with the material and did not assert he had forgotten or was unable to respond. That is correct. However, the important point is that the appellant was denied the opportunity which s 473DE was intended to provide him. The appellant might have responded quite differently if he had been given a real opportunity to consider what was being put to him. Further, it was not so much the material which he engaged with but the Authority’s “particulars” of that material. At the simplest level, the appellant may have pointed out, in more detail than he did and no doubt in his own way, the matters to which Lee, Carr and Finkelstein JJ referred in W375 at [11], set out at paragraph [8] above. He may have explained that his responses at the “entry interview” should be considered in the context of his experiences with, or suspicion of, government authorities in Sri Lanka, his recent experiences in fleeing that country or other matters. It was not necessary for the applicant to adduce evidence about what he would have said, something which at best would have been a hypothetical exercise.CONCLUSION The appeal should be allowed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.