BVD17 v Minister for Immigration and Border Protection & Anor [2019] HCA 34: High Court Dismisses Appeal

Friday 11 October 2019 @ 3.02 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

In the case of BVD17 v Minister for Immigration and Border Protection & Anor [2019] 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 [2018] FCAFC 114 (25 July 2018).

Background

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.

Findings by the Authority

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 [19]:

“… The statement indicates that, in so finding, the Authority placed weight on the absence of corroboration of one of the appellant's claims in information contained in documents in a file of the Department which related to an application for a protection visa which had been made by another member of the appellant's family.”

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.

A Question of Procedural Fairness

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]:

“… That the giving of a notification under s 438(2)(a) of the Migration Act 1958 (Cth) ("the Act") triggers an obligation of procedural fairness on the part of the Administrative Appeals Tribunal ("the Tribunal") to disclose the fact of notification to an applicant for review
… the present appeal is whether the giving of a notification under s 473GB(2)(a) triggers an equivalent obligation of procedural fairness on the part of the Immigration Assessment Authority ('the Authority') to disclose the fact of notification to a referred applicant in a review under Pt 7AA ... The short answer is that procedural fairness does not oblige the Authority to disclose the fact of notification under s 473GB(2)(a) to a referred applicant in a review under Pt 7AA. The short reason is that s 473DA precludes such an obligation from arising.”

Rejection of the Appeal

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]:

“The important point for this appeal is … to whether an error is jurisdictional, or whether a miscarriage of justice is substantial, is whether the action or error qualifies as legally unjust or legally unreasonable or, in the language of the criminal law, a miscarriage of justice … The failure did not reach the sufficient threshold of unreasonableness. Nor did it reach the required threshold of legal unfairness. The failure to inform the appellant of the existence of the certificate did not affect the manner in which the review was conducted … For these reasons the first ground of appeal must be dismissed ... ”

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Sources:

BVD17 v Minister for Immigration and Border Protection & Anor [2019] HCA 34 (9 October 2019)

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