Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 Appeal from: BBS16 v Minister for Immigration & Anor [2017] FCCA 4 File number: NSD 242 of 2017

Judges: KENNY, TRACEY AND GRIFFITHS JJ

Date of judgment: 10 November 2017

Catchwords: PRACTICE AND PROCEDURE – appeal from Federal Circuit Court of Australia – whether appellant was denied procedural fairness because FCCA upheld first respondent's judicial review challenge on an issue not previously raised MIGRATION – whether primary judge erred in finding that the Immigration Assessment Authority (IAA) erred in rejecting the first respondent's claim for complementary protection under s 36(2)(aa) of the Migration Act 1058 (Cth) (the Act) – whether terms of ICCPR relevant to complementary protection under s 36(2)(aa) of the Act – Pt 7AA of the Act – where notice of contention filed – whether IAA misapplied the "real chance" test in s 5J(1)(b) of the Act and the "real risk" test in s 36(2)(aa) of the Act and failed to reach the requisite "satisfaction" under ss 36(2)(a) and (aa) of the Act – whether IAA failed to consider and determine a claim which arose clearly on the material before it – whether IAA acted on an invalidly issued s 473GB certificate or denied first respondent procedural fairness – whether MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1 applied to Pt 7AA of the Act – whether IAA misconstrued "exceptional circumstances" in s 473DD(b) of the Act and so constructively failed to exercise its jurisdiction – whether BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 applied Held: appeal allowed and notice of contention upheld in part