AUS17 v Minister for Immigration and Border Protection [2020] HCA 37

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ

AUS17 APPELLANT

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR RESPONDENTS

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 Date of Hearing: 4 September 2020 Date of Judgment: 14 October 2020 S71/2020

ORDER

1. Appeal allowed.

2. Set aside orders 2, 3, 4 and 5 of the Federal Court of Australia made on 16 October 2019 and, in their place, order that the appeal to that Court be dismissed with costs.

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

On appeal from the Federal Court of Australia

Representation

S B Lloyd SC and J B King for the appellant (instructed by Varess)

G R Kennett SC with B D Kaplan for the first respondent (instructed by Sparke Helmore Lawyers)

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

AUS17 v Minister for Immigration and Border Protection

Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where delegate of Minister for Immigration and Border Protection refused to grant appellant protection visa – Where decision referred to Authority for review – Where appellant's representative supplied Authority with further materials including letter of support from third party which post‑dated delegate's decision – Where Authority considered the letter was "new information" but concluded it was not able to be considered under s 473DD – Where Authority assessed new information against criteria in ss 473DD(b)(i) and 473DD(a) but not s 473DD(b)(ii) – Whether s 473DD requires Authority to consider criteria in ss 473DD(b)(i) and 473DD(b)(ii) before considering criterion in s 473DD(a).