Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12

FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 Appeal from: EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10

File number: NSD 975 of 2021

Judgment of: BEACH, THAWLEY AND CHEESEMAN JJ

Date of judgment: 11 February 2022

Catchwords: MIGRATION – Immigration Assessment Authority (IAA) – where primary judge found that the "receiving country" at the time of the IAA's decision, namely Afghanistan, had ceased to exist and that there was the "new existence of a county being the Islamic Emirate of Afghanistan" with the result that the IAA's decision some four years earlier was "illogical and irrational and wanting in evident justification as to amount to legal unreasonableness" – whether primary judge erred in admitting evidence considered to be relevant to the existence or otherwise of Afghanistan – evidence was irrelevant and erroneously admitted – whether existence of receiving country a jurisdictional fact or condition precedent to exercise of the IAA's power – whether the events in Afghanistan which occurred over four years after IAA decision were relevant to the application for judicial review – such events not relevant to the question of jurisdictional error on the part of the IAA – appeal allowed

Legislation: Evidence Act 1995 (Cth) ss 55, 56, 144 Federal Court Act 1976 (Cth) s 27 Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 65(1)(a), 65(1)(b), 473CC

Cases cited: BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181 EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10 FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106 Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 95 ALJR 117; 386 ALR 200 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 NASB v Minister for Immigration and Multicultural Affairs and Citizenship [2004] FCAFC 24 Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA Trans 118 Plaintiff M47/2012 v Director General of Security [2012] HCA 46; (2012) 251 CLR 1; 86 ALJR 1372 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2012) 251 CLR 322; 88 ALJR 324 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992; 207 ALR 12 SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1116