DOR17 v Minister for Immigration

This matter concerned an application for a protection visa and a review of a decision by the Immigration Assessment Authority (IAA). The applicant, DOR17, argued that the IAA had erred by failing to properly consider their claim, including a specific claim concerning a relative, and that the IAA had no power to make a second decision in light of section 473EA(3) of the *Migration Act 1958* (Cth). The court was asked to determine whether the IAA had jurisdiction to make a second decision after its initial decision was found to be affected by jurisdictional error.

The central legal issue before the court was whether section 473EA of the *Migration Act 1958* (Cth) precluded the IAA from making a second decision when its first decision was vitiated by jurisdictional error. This involved considering the effect of subsections (2) and (3) of section 473EA, which deal with when a decision is taken to be made and the IAA's power to vary or revoke a decision. The court also had to determine whether a decision made without properly undertaking the statutory review process, as required by section 473CC, could be considered a "decision" for the purposes of section 473EA.

The court reasoned that a decision affected by jurisdictional error is, in law, "no decision at all," a principle established in *Minister for Immigration & Multicultural Affairs v Bhardwaj*. Applying this principle, the court found that section 473EA(2) and (3) did not operate to deem a decision made in excess of jurisdiction as a valid decision for the purposes of preventing a subsequent review. The court held that the phrase "taken to have been made" in section 473EA(2) merely provided precision regarding the timing and form of a decision, rather than conferring power to reopen or validate a decision that fundamentally failed to discharge the statutory review obligations. Therefore, the IAA retained the power to make a second decision in circumstances where the initial decision was a nullity due to jurisdictional error.

The court concluded that the IAA had the power to make a second decision and that its failure to properly consider the applicant's claims constituted jurisdictional error. Writs were issued accordingly.