High Court of Australia

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

18 Apr 2018

Case Number: M174/2016

Before

Gageler, Keane, Nettle, Gordon, Edelman JJ

Catchwords

Migration – Pt 2 Div 3 subdiv AB of Migration Act 1958 (Cth) – Where plaintiff applied for protection visa – Where plaintiff claimed real chance of harm due to being Christian – Where plaintiff claimed to attend church regularly – Where delegate of Minister for Immigration and Border Protection called reverend of church and reverend provided information on plaintiff's attendance at church – Where delegate did not provide plaintiff with information provided by reverend or invite plaintiff to comment on it – Where delegate refused to grant protection visa to plaintiff – Whether delegate failed to comply with s 57(2) of Migration Act.

Migration – Pt 7AA of Migration Act 1958 (Cth) – Where plaintiff "fast track review applicant" within meaning of Migration Act – Whether decision affected by jurisdictional error because of failure to comply with s 57(2) a "fast track reviewable decision" within meaning of Pt 7AA – Where "new information" defined as documents or information not before Minister when deciding to refuse to grant protection visa that Immigration Assessment Authority considers may be relevant – Power of Authority to get new information – Power of Authority to consider new information – Obligation of Authority to invite applicant to comment on new information – Nature of review by Authority – Whether Authority's decision not to interview plaintiff and certain other persons or to have regard to certain information provided by plaintiff legally unreasonable.

Words and phrases – "condition of valid performance", "decision", "decision that is made in fact", "de novo consideration of the merits", "exceptional circumstances", "fast track reviewable decision", "jurisdictional error", "legally effective decision", "legally unreasonable", "new information", "not a valid decision", "not previously known", "personal information", "relevant information", "review material", "unreasonable failure to exercise power", "would be the reason, or part of the reason for refusing to grant a visa".

Migration Act 1958 (Cth) – ss 5, 46A, 54, 55, 56, 57, 69, Pt 7AA.

Migration Regulations 1994 (Cth) – reg 4. 43.
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