BRK15 v Minister for Immigration and Border Protection [2016] FCA 1570

FEDERAL COURT OF AUSTRALIA

BRK15 v Minister for Immigration and Border Protection [2016] FCA 1570 File number: WAD 150 of 2016

Judge: GILMOUR J

Date of judgment: 22 December 2016

Catchwords: MIGRATION – Refugee – Unlawful non-citizen – Refusal to grant a protection (class XA) visa – applicant owed non-refoulement obligation by Australia – Indefinite immigration detention – No realistic prospect of removal from Australia in reasonably foreseeable future – Whether the Minister's exercise of power under s 501(1) of the Migration Act 1958 (Cth) was affected by jurisdictional error ADMINISTRATIVE LAW – Judicial review – procedural fairness – Requirement to inform applicant of the critical importance of his employability as affected by his disability being relevant to consideration of his application - The decision maker must also advise of any adverse conclusion which would not obviously be open on the known material

Legislation: Disability Discrimination Act 1992 (Cth) ss 15, 15(1)(b), 21A, 21B Federal Circuit Court of Australia Act 1999 (Cth) s 39 Migration Act 1958 (Cth) ss 169, 196, 476A(1)(c), 501, 501(1), 501(6)(a), 501(7)(c)

Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Multicultural and Indigenous Affairs; Ex-parte Lam (2003) 214 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v Watson (205) 145 FCR 542 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44 Roach v Minister for Immigration and Border Protection [2016] FCA 750