DHS17 v Assistant Minister for Immigration and Border Protection [2018] FCAFC 209

FEDERAL COURT OF AUSTRALIA

DHS17 v Assistant Minister for Immigration and Border Protection [2018] FCAFC 209 Appeal from: DHS17 v Assistant Minister for Immigration and Border Protection [2018] FCA 495

File number: VID 514 of 2018

Judge: KENNY, MOSHINSKY AND BROMWICH JJ

Date of judgment: 27 November 2018

Catchwords: MIGRATION – appeal from decision of primary judge dismissing application for judicial review – decision by Assistant Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke mandatory cancellation decision – where Assistant Minister relied on International Treaties Obligations Assessment (ITOA) in making decision – where ITOA provided to Assistant Minister omitted a redacted paragraph – whether Assistant Minister failed to take into account a relevant consideration – where redacted ITOA was apt to mislead and deprived appellant of positive independent support for his narrative – where complete ITOA was constructively before Assistant Minister – where information omitted was not insignificant and Assistant Minister could have reached a different view if he had the complete ITOA – appeal allowed PRACTICE AND PROCEDURE – application to amend notice of appeal to raise new ground of review not raised before primary judge – application to adduce further evidence on the appeal – where evidence not available to the appellant at the time of hearing before primary judge – leave granted

Legislation: Federal Court of Australia Act 1976 (Cth) s 27 Freedom of Information Act 1982 (Cth) Migration Act 1958 (Cth) ss 501, 501CA Federal Court Rules 2011 (Cth) r 36.57