Plaintiff M174/2016 v Minister for Immigration and Border Protection

The High Court of Australia considered a dispute between a protection visa applicant, identified as Plaintiff M174/2016, and the Minister for Immigration and Border Protection. The applicant claimed a real chance of harm due to their Christian faith and regular church attendance. The delegate of the Minister contacted the applicant's reverend, who provided information regarding the applicant's attendance. This information was not disclosed to the applicant, nor were they invited to comment on it, before the delegate refused to grant the protection visa. The applicant contended that this failure constituted a breach of section 57(2) of the *Migration Act 1958* (Cth).

The legal issues before the Court included whether the delegate had failed to comply with section 57(2) of the *Migration Act*. Further, the Court had to determine if such a failure, if it occurred, would render the delegate's decision not a "fast track reviewable decision" under Part 7AA of the Act, thereby preventing the Immigration Assessment Authority (the Authority) from having jurisdiction to review it. The Court also considered whether the Authority's decision not to interview certain individuals or to disregard specific information provided by the applicant was legally unreasonable, given the Authority's powers to obtain and consider "new information" under Part 7AA.

The Court reasoned that the delegate had not failed to comply with section 57(2) of the *Migration Act*. Applying the principle established in *Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd*, the Court affirmed that a "decision" for the purposes of review is a decision made in fact, regardless of its legal effectiveness. This approach, which has been consistently applied to migration review tribunals, aims to ensure that decisions most in need of review are not excluded by technicalities. Consequently, the Court found that any potential failure by the delegate did not prevent the decision from being a "fast track reviewable decision" capable of referral to the Authority, nor did it invalidate the preconditions for the Authority's exercise of power. The Court also determined that the Authority had not acted unreasonably in its handling of new information or in its decision not to conduct further interviews.

The High Court answered the referred questions accordingly. It held that the delegate did not fail to comply with section 57(2) of the *Migration Act*. It further held that any such failure would not have the consequence of preventing the delegate's decision from being a "fast track reviewable decision" or of divesting the Authority of jurisdiction. The Court also found that the Authority did not fail to conduct its review in accordance with Part 7AA by acting legally unreasonably in its consideration of new information. No relief was granted to the plaintiff, and the plaintiff was ordered to pay the costs of the special case.