DHS17 v Assistant Minister for Immigration and Border Protection

The case of DHS17 v Assistant Minister for Immigration and Border Protection involved the appellant, a non-citizen, appealing a decision by the Assistant Minister for Immigration and Border Protection not to revoke a mandatory cancellation of his protection visa. The decision was made under section 501CA(4) of the Migration Act 1958 (Cth), which allows for the revocation of a visa cancellation decision. The Assistant Minister had relied on an International Treaties Obligations Assessment (ITOA) in making his decision, but the appellant argued that the ITOA provided to the Assistant Minister omitted a redacted paragraph, which was apt to mislead and deprived him of positive independent support for his narrative. The legal issues before the court were whether the Assistant Minister failed to take into account a relevant consideration and whether the appellant should be granted leave to amend his notice of appeal to raise a new ground of review and to adduce further evidence.

The court found that the Assistant Minister did fail to take into account a relevant consideration, as the redacted paragraph was not insignificant and the Assistant Minister could have reached a different view if he had the complete ITOA. The court also found that the appellant should be granted leave to amend his notice of appeal and to adduce further evidence, as the evidence was not available to the appellant at the time of the hearing before the primary judge and was likely to have led to a different result. The court allowed the appeal and set aside the decision of the Assistant Minister not to revoke the cancellation of the appellant’s protection visa, directing that a new decision be made according to law. The Assistant Minister was also ordered to pay the appellant's costs of and incidental to the appeal.