CQR17 v Minister for Immigration and Border Protection

This appeal is from an order of the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (IAA). The appellant, a Sri Lankan national, sought a Safe Haven Enterprise Visa (SHEV) but this was refused. The decision was referred to the IAA for review under s 473CA of the Migration Act 1958 (Cth). The appellant then sought to appeal the IAA’s decision to the Federal Circuit Court. However, the appellant failed to file a Notice of Appeal within the time permitted by r 36.03 of the Federal Court Rules 2011 (Cth). Nonetheless, on 13 November 2018, an extension of time in which to appeal was granted under r 36.05 and a Notice of Appeal was duly filed.

The central issue before the court was whether the Secretary failed to provide all the material in possession or control of the delegate to the IAA, as required by s 473CB(1)(c) of the Act, and if so, whether that constituted a jurisdictional error. The appellant argued that the Secretary failed to identify relevant documents and unreasonably considered certain documents irrelevant to the review. The Minister for Immigration and Border Protection argued that the Secretary did not breach the statutory obligation because the Secretary had not failed to consider relevant documents and the view that the documents were not relevant was legally reasonable.

The court found that there was no jurisdictional error in the IAA’s decision. The court considered that the Secretary’s view as to relevance must be formed in a reasonable manner and on a correct understanding of the law. The court also found that even if the Secretary had breached the statutory obligation, the contravention did not amount to jurisdictional error because it could not have made any difference to the result. The court held that the IAA was not prevented from conducting the review which Part 7AA contemplated and jurisdictional error was not established.

The court dismissed the notice of appeal filed on 7 December 2018 and ordered the appellant to pay the first respondent’s costs of and incidental to this appeal.