Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17

In the matter of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17, the Federal Court of Australia was called upon to determine the validity of an appeal against an order made by the Federal Circuit Court of Australia, which had quashed a decision of the Immigration Assessment Authority. The Authority had affirmed a decision of the delegate of the Minister to refuse the first respondent’s application for a Safe Haven Enterprise visa. The primary legal issues the court was required to decide included whether the Authority appropriately assessed new information provided under section 473DD of the Migration Act 1958 (Cth) and whether the Authority correctly applied the requirement that new information must be capable of being believed. The court also considered whether the Authority adequately determined whether the new information was not capable of being believed and whether it erred by not asking itself whether the information was capable of being believed before considering it for the purposes of the review.

The court held that the Authority's finding that a document was not genuine constituted a finding that the document was not capable of being believed. Furthermore, the court found that the Authority proceeded directly to a rejection of the new information without assessing its credibility, which was a procedural error. The court reaffirmed its previous authority that the Authority is required to determine whether the information is capable of being believed under section 473DD(b)(ii) before considering it for the purposes of the review. Consequently, the appeal was allowed, and the orders of the Federal Circuit Court made on 19 December 2019 were set aside. Instead, the amended application for judicial review was dismissed, and BTW17 was ordered to pay the Minister's costs of the application for judicial review. Additionally, BTW17 was to pay the appellant's costs of the appeal.