In the case of BVD17 v Minister for Immigration and Border Protection & Anor  HCA 34 (9 October 2019), the High Court of Australia has dismissed an appeal from a decision from the Full Court of the Federal Court of Australia concerning the procedural fairness obligations of the Immigration Assessment Authority (the "Authority") - BVD17 v Minister for Immigration and Border Protection  FCAFC 114 (25 July 2018).
Arriving in Australia during October 2012 as an unauthorised maritime arrival, BVD17 (the “Appellant”) applied for a Protection Visa in March 2016, but was refused by the Minister, who then referred a decision by his Delegate to refuse the application to the Authority for review.
The Appellant claimed to fear harm by the Sri Lankan Army and the Criminal Investigation Department, on account of an imputed support of the Liberation Tigers of Tamil Eelam. He also feared harm by the Karuna Group, from which he claimed to have escaped after being abducted and beaten.
In April 2017, the Authority affirmed the delegate's decision, finding the Appellant had fabricated his claim to have been of interest to authorities in Sri Lanka.
In their findings, the Authority placed weight on the absence of corroboration of one of the Appellant's claims in a departmental file relating to an application for a protection visa made by a member of the Appellant's family. In their judgement, their Honours noted at para :
The file had been before the Delegate at the time of making the decision to refuse the Appellant's protection visa but had not been relied on adversely by the delegate. The file had then been included in the review material given to the Authority by the Secretary. It was accompanied by a notification under s 473GB(2)(a) [of the Migration Act 1958 (Cth) (the “Act”)] that s 473GB applied to the documents and information in the file. The Authority did not disclose any of the documents or information in the file to the Appellant and did not disclose to the Appellant the fact of the notification.
Part 7AA of the Act establishes a scheme for the ministerial referral of decisions refusing protection visas to certain applicants to the Authority for review. Within Pt 7AA, s 473GB relevantly applies to a document or information given to the Minister or an officer of the Department of Immigration and Border Protection (the “Department") in confidence.
In the judgement, their Honours commented, paras [1-2]:
In rejecting the Appeal, the High Court unanimously found there was insufficient evidence to infer that the Authority failed to consider exercising the discretion conferred by s 473GB(3)(b). Their Honours said at paras [68-69]:
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BVD17 v Minister for Immigration and Border Protection & Anor  HCA 34 (9 October 2019)
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