ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

ABT17 APPELLANT

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR RESPONDENTS

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 Date of Hearing: 6 August 2020 Date of Judgment: 14 October 2020 M140/2019

ORDER

1. Appeal allowed.

2. Set aside the orders of the Federal Court of Australia made on 16 April 2019 and, in their place, order that:

(a) the appeal to that Court be allowed;

(b) the orders of the Federal Circuit Court of Australia made on 23 March 2018 be set aside and, in their place, it be ordered that:

(i) writs of certiorari and mandamus be issued to the second respondent quashing the decision made on 16 December 2016 and remitting the matter to be determined according to law; and

(ii) the first respondent pay the applicant's costs of the application for judicial review to the Federal Circuit Court of Australia; and

(c) the first respondent pay the appellant's costs of the appeal to that Court.

3. The first respondent pay the appellant's costs of the appeal to this Court.

On appeal from the Federal Court of Australia

Representation

M A Schilling with A N P McBeth for the appellant (instructed by Clothier Anderson Immigration Lawyers)

G A Hill for the first respondent (instructed by Sparke Helmore)

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

ABT17 v Minister for Immigration and Border Protection

Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("IAA") – Review by IAA under Pt 7AA of Migration Act 1958 (Cth) – Where delegate of Minister for Immigration and Border Protection ("Minister") refused to grant appellant temporary protection visa – Where delegate accepted appellant's account as plausible, but found appellant did not hold well‑founded fear of persecution based on country information – Where delegate's decision referred to IAA for review – Where IAA affirmed delegate's decision – Where IAA departed from delegate's assessment of appellant's credibility – Where under s 473DB IAA generally required to review fast track reviewable decision by considering review material, and without accepting new information or interviewing applicant – Where under s 473DC IAA may get new information not before Minister and that IAA considers may be relevant, including by inviting applicant to interview – Where under s 473DD IAA must not consider new information unless satisfied there are exceptional circumstances, and that new information was not and could not have been before Minister or is credible personal information – Whether legally unreasonable for IAA to depart from delegate's assessment of appellant's credibility without inviting appellant to interview – Whether appellant's demeanour "new information" within meaning of s 473DC – Whether failure to invite appellant to interview was material to IAA's decision.