CKV15 v Minister for Immigration

This matter came before Judge Antoni Lucev of the Federal Circuit Court of Australia. The applicant sought judicial review of a decision by the former Refugee Review Tribunal (Tribunal) which affirmed a delegate's decision to refuse the applicant a protection visa. The central dispute concerned whether the Tribunal's decision was vitiated by jurisdictional error due to a denial of procedural fairness.

The primary legal issue before the Court was whether the Tribunal committed jurisdictional error by concluding that the applicant had "fabricated a claim to have steered a people smuggling vessel" without providing the applicant with adequate notice that this was an issue arising in relation to the decision under review, as required by section 425 of the *Migration Act 1958* (Cth). The applicant contended that the delegate's refusal was based on separate grounds, and the Tribunal failed to raise the steering issue in writing or orally during the hearing, despite questioning the applicant about his refusal to steer a vessel in the past.

The Court considered the applicant's submissions that the Tribunal's questioning and subsequent findings regarding the steering of the vessel were inadequate to alert the applicant that this was a critical issue. The applicant argued that the Tribunal's focus appeared to be on other aspects, and the limited references to the steering evidence in the decision, coupled with the Tribunal running out of time and inviting broad written submissions, prevented him from adequately addressing this newly emergent issue. The applicant maintained that had he been properly notified, he could have provided further evidence, testimony, or sought corroborative information.

The Court found that the Tribunal's decision was vitiated by jurisdictional error due to a denial of procedural fairness. The Tribunal's conclusion that the applicant had fabricated his claim to have steered the vessel was a significant adverse finding that was not adequately foreshadowed or put to the applicant for response. The Court ordered that the decision of the Tribunal be set aside and remitted to the Tribunal for redetermination according to law.