BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44

FEDERAL COURT OF AUSTRALIA

BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44 Appeal from: BYA17 & Ors v Minister for Immigration & Anor [2018] FCCA 865

File number: SAD 88 of 2018

Judges: RARES, PERRY AND CHARLESWORTH JJ

Date of judgment: 14 March 2019

Catchwords: MIGRATION – appeal from orders of the Federal Circuit Court (FCC) dismissing the appellants' application for judicial review of a decision by the Immigration Assessment Authority (IAA) under Part 7AA of the Migration Act 1958 (Cth) – where IAA affirmed delegate's decision refusing to grant the appellants a safe haven visa – where the primary rule in Part 7AA is that the fast track review is conducted on the papers by reference only to the material provided by the Secretary under s 473CB(1) – whether the FCC ought to have inferred that the IAA did not consider whether the new information fell within the exception in s 473DD of the Act to the primary rule – where IAA did not refer in its statement of reasons to the new information in issue – whether the new information was of marginal relevance only – whether IAA's error in failing to form a state of satisfaction on whether to consider the new information was material – appeal allowed

Legislation: Migration Act 1958 (Cth) s 473DD Acts Interpretation Act 1901 (Cth) s 25D

Cases cited: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; (2018) 92 ALJR 798 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593