Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 Appeal from: DZU16 v Minister for Immigration & Anor [2017] FCCA 851

File number: NSD 1160 of 2017

Judges: ROBERTSON, MURPHY AND KERR JJ

Date of judgment: 12 March 2018

Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia which quashed a decision of the Immigration Assessment Authority (Authority) – refusal of a protection visa – respondent an ethnic Hazara and a Shia Muslim – respondent claimed fear of harm in Afghanistan – delegate found that respondent faced a real chance of serious harm in his home district but that he could relocate to Kabul – Authority found instead that the respondent could relocate to Mazar-e-Sharif – by letter of 27 October 2016, Authority invited respondent to comment on "new information" under s 473DE of the Migration Act 1958 (Cth) but where it was not obliged to do so – Authority then incorrectly specified less than the statutory period, three days after the person is notified of the invitation, for response to the invitation – respondent also told by the Authority that any response he gave before a decision was made may be considered – no response made by respondent – whether the primary judge erred in holding that it was unreasonable for the Authority not to consider giving the respondent an effective opportunity to address the issue that it found dispositive and failed to consider acting under s 473DC(3) of the Migration Act – whether the primary judge erred in failing to find that procedural fairness required that the respondent be informed of the issues that the Authority considered may be dispositive of his case, and be given a reasonable opportunity to respond – whether the primary judge erred in failing to find that the Authority in fact acted pursuant to s 473DC(3) of the Migration Act in issuing its letter of 27 October 2016 and that in that circumstance the Authority's non-compliance with s 473DF(2) of the Migration Act, read with r 4.42(a) of the Migration Regulations 1994 (Cth), resulted in jurisdictional error – whether the Authority's letter of 27 October 2016 was issued pursuant to the Authority's non-statutory powers or capacities and whether it was legally unreasonable for the Authority not to give the respondent a meaningful time to respond – whether primary judge erred in holding that the Authority made a jurisdictional error in failing correctly to apply the relocation provision in s 36(2B)(a)