ABV16 v Minister for Immigration and Border Protection [2017] FCA 184

FEDERAL COURT OF AUSTRALIA

ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 Appeal from: ABV16 v Minister for Immigration & Anor [2016] FCCA 1078

File number: NSD 775 of 2016

Judge: BROMBERG J

Date of judgment: 2 March 2017

Catchwords: MIGRATION – Protection (Class XA) visa – appeal from the Federal Circuit Court of Australia ("FCC") – whether FCC erred in failing to find jurisdictional error in the decision of the AAT ("Tribunal") – where the Tribunal dismissed the appellant's claims on the basis of country of origin information ("COI") which post-dated the hearing and indicated that the condition forming the premise of the appellant's claim no longer existed ("changed condition") – whether the changed condition gave rise to a new issue under s 425(1) of the Migration Act 1958 (Cth) such that the Tribunal was required to invite the appellant to a new hearing – whether the Tribunal had an alternative basis for dismissing the appellant's claim – whether the Tribunal was excused from providing particulars of the changed condition by s 424A(3)(a) – consideration of any tension between s 424A(3)(a) and s 425(1) – the changed condition gave rise to a new issue – s 424A(3)(a) did not excuse the Tribunal from the obligation to hold a further hearing – the Tribunal's failure to hold a further hearing amounted to jurisdictional error – the FCC erred in failing to discern the Tribunal's error – appeal allowed

Legislation: Migration Act 1958 (Cth) ss 36(2), 422B 424A(3)(a), 425(1) 474 Federal Court Rules 2011 (Cth) Div 4.2

Cases cited: ABV16 v Minister for Immigration & Anor [2016] FCCA 1078 ACC15 v Minister for Immigration and Border Protection [2016] FCA 97 BEV15 v Minister for Immigration and Border Protection [2016] FCA 507 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 Kioa v West (1985) 159 CLR 550 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82