CNY17 v Minister for Immigration and Border Protection [2019] HCA 50

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER, NETTLE, GORDON AND EDELMAN JJ

CNY17 APPELLANT

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR RESPONDENTS

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 Date of Hearing: 16 October 2019 Date of Judgment: 13 December 2019 M72/2019

ORDER

1. Appeal allowed with costs.

2. Set aside orders 1 and 2 made by the Full Court of the Federal Court of Australia on 21 September 2018 and order 1 made by the Full Court of the Federal Court of Australia on 12 October 2018 and, in their place, order that:

(a) the appeal be allowed with costs; and

(b) orders 1 and 2 of the Federal Circuit Court of Australia dated 8 November 2017 be set aside and, in their place, order that:

(i) the decision of the Immigration Assessment Authority dated 12 May 2017 be quashed;

(ii) the matter be remitted to the Immigration Assessment Authority differently constituted; and

(iii) the first respondent pay the applicant's costs.

On appeal from the Federal Court of Australia

Representation

L G De Ferrari SC with M W Guo for the appellant (instructed by Estrin Saul Lawyers)

G R Kennett SC with A P Yuile for the first respondent (instructed by Australian Government Solicitor)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

CNY17 v Minister for Immigration and Border Protection

Immigration – Refugees ­– Application for protection visa ­– Where Pt 7AA of Migration Act 1958 (Cth) requires Immigration Assessment Authority ("IAA") to review certain decisions to refuse applications for protection visas – Where s 473CB(1)(a), (b) and (d) requires Secretary of Department to give certain material to IAA to conduct review ­­– Where s 473CB(1)(c) requires Secretary to give to IAA any other material Secretary considers relevant to review – Where s 473DB requires IAA to review decision by considering material given by Secretary – Where Secretary gave material to IAA pursuant to s 473CB(1)(c) ­– Where material irrelevant to task of IAA – Where material prejudicial to applicant ­– Where applicant unaware of material ­– Whether jurisdictional error by Secretary –­ Whether jurisdictional error invalidated decision of IAA – Whether apprehended bias.