CED16 v Minister for Immigration and Border Protection

In the matter of CED16 v Minister for Immigration and Border Protection, the appellant, a citizen of Sri Lanka, applied for a Safe Haven Enterprise Visa (Class XE Subclass 790). The delegate of the Minister for Immigration and Border Protection refused the application on 19 May 2016. The decision was automatically referred to the Immigration Assessment Authority (IAA) on the same day. The Minister purported to certify under section 473GB that the disclosure of information in the IA Form could form the basis for a claim of Public Interest Immunity by the Crown. On 11 July 2016, the IAA affirmed the delegate's decision to refuse the visa. The appellant argued that the s 473GB Certificate was invalid because it failed to specify the reason why the information was protected from disclosure on the grounds of public interest immunity or Crown Privilege. The Minister accepted that the certificate was invalid, but submitted that the IAA was entitled to treat the information in the certificate and the IA Form as "review material" which was not subject to Subdivision C.

The court had to decide whether the IAA was bound to treat the information in the invalid Certificate and IA Form as "new information" and, if so, whether the IAA was required to give particulars of that information to the appellant. The court held that the IAA was required to treat the information as "new information" and give particulars of that information to the appellant. The court also held that the IAA believed its discretion under section 473GB(3) was enlivened and proceeded to undertake the review on that basis. The court found that the IAA did not provide particulars of the information to the appellant which necessarily means it did not treat the information as "new information". The Minister submitted that once it is accepted s 473GB is not engaged because the certificate was invalid, the IAA was required to deal with the information as "review material" pursuant to s 473DB. However, the court found that if the document covered by the non-disclosure certificate meets the definition of "new information" under 473DC then other questions may arise.

The court held that the Minister's reliance upon the appellant's inability to show how the IAA actually dealt with the information in the invalid Certificate and IA Form was grounded upon the assumption that the IAA was not bound to treat either as containing "new information". However, if, as appears to be the case, the IAA was required to treat either document as containing "new information", it would have been required to give particulars of that information to the appellant. The court held that the IAA did not provide particulars of the information to the appellant which necessarily means it did not treat the information as "new information". The court also held that the IAA believed its discretion under section 473GB(3) was enlivened and proceeded to undertake the review on that basis. The court allowed the appeal and ordered that the first respondent pay the appellant's costs of the appeal.