Federal Court of Australia

DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit and Family Court of Australia made on 24 January 2022 be set aside and in lieu thereof:

(a)    A writ of certiorari be issued quashing the decision of the Second Respondent dated 9 July 2020.

(b)    A writ of mandamus directed to the Second Respondent be issued requiring it to review the decision of the delegate of the First Respondent made on 23 May 2017 according to law.

(c)    The First Respondent pay the Applicant’s costs of the proceeding.

3.    The First Respondent pay the Appellant’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (formerly the Federal Circuit Court) (Circuit Court) dismissing an application for judicial review of a decision made by the Immigration Assessment Authority (Authority). The Authority had affirmed a decision of a delegate of the First Respondent (Minister) to refuse to grant a Safe Haven Enterprise (XE‑790) visa to the Appellant under s 65 of the Migration Act 1958 (Cth) (the Act).

FACTUAL BACKGROUND

2    On 14 February 2017, the Appellant applied for a Safe Haven Enterprise visa. When the application was lodged, the Appellant was granted a Bridging E (subclass 050) visa (bridging visa), allowing the Appellant to remain in Australia lawfully during the processing of his application.

3    On 23 May 2017, the Minister refused the application for a Safe Haven Enterprise visa. On 26 May 2017, the Minister’s decision was referred to the Authority for fast track review.

4    A form F2 completed on 15 June 2017 was signed by the Appellant appointing Ms Leah Perkins of Carina Ford Immigration Lawyers to act as his representative and authorised recipient to receive documents in connection with the fast track review, pursuant to s 473HG of the Act.

5    On 19 July 2017, the Appellant’s bridging visa was cancelled under s 116 of the Act on the basis that the Appellant had been charged with an offence. The cancellation followed an interview between the Appellant and a delegate of the Minister while the Appellant was on remand.

6    On 19 September 2017, Mr Michael Pena‑Rees of Armour Legal Pty Ltd (Armour Legal) lodged another form F2 signed by the Appellant, appointing Mr Pena‑Rees as the Appellant’s representative and authorised recipient to receive documents in connection with the fast track review in lieu of Ms Perkins.

7    On 12 March 2018, the Authority completed its fast track review of the Minister’s decision and made a written statement purporting to affirm the Minister’s decision. After making the written statement, the Authority was required pursuant to s 473EA(4) of the Act to return to the Secretary of the Department (Secretary) any document that the Secretary had provided in relation to the review and give the Secretary a copy of any other document that contained evidence or material on which the findings of fact were based.

8    The Department’s system included the following record of location for the Appellant:

9    The Appellant sought judicial review of the Authority’s decision in the Circuit Court. From 17 December 2019, Victoria Legal Aid represented the Appellant in those proceedings.

10    While the judicial review proceeding was pending, on 23 March 2020, a manager was appointed by the Victorian Legal Services Board in respect of Armour Legal. On 2 May 2020, Mr Pena‑Rees’ registration as a migration agent ceased.

11    By orders made on 8 May 2020, the Circuit Court quashed the decision of the Authority and required the Authority to determine the application for review according to law.

12    Following the publication of the Circuit Court’s orders, the Secretary was required to give to the Authority the “review material” provided for in s 473CB of the Act, including the details provided for in s 473CB(1)(d) (set out in para [25] of these reasons). The Minister conceded before the primary judge that the Secretary had failed to provide the Appellant’s residential address to the Authority, as set out in the primary judge’s reasons at [39].

13    On 11 May 2020, Armour Legal went into administration and, on 16 June 2020, went into liquidation.

14    On 19 June 2020, the Authority attempted to send a letter addressed to the Appellant, by email, to Mr Pena‑Rees at his Armour Legal email address in relation to the remittal. The Authority also sent a copy to the Appellant at a Hotmail email address. The letter noted that the matter had been remitted to the Authority for reconsideration and stated, in part (emphasis in original):

It is important that you:

•    use your new reference number IAA20/08495 whenever you contact us;

•    advise us in writing if you want us to send correspondence to you instead of Michael Pena‑Rees (to do this, visit www.iaa.gov.au and obtain form F5);

•    advise us in writing if you wish to change the person who receives correspondence on your behalf or acts as your representative (to do this, visit www.iaa.gov.au and obtain form F2);

•    tell us immediately if you change your contact details such as your email address, residential address, mailing address or telephone number; and

•    act quickly in your dealings with us, as a decision may be made at any time.

In reconsidering your case, the [Authority] will proceed to make a decision on the basis of the information sent to us by the Department of Home Affairs (the Department), including any documents you provided to the Department in connection with your protection visa application, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached Practice Direction. You can also obtain a copy of this Practice Direction at www.iaa.gov.au.

You do not need to provide further copies of any documents or information you have already given to the [Authority]. If there is any new information you want us to consider, which has not already been provided, please note there are specific requirements in the Practice Direction which should be complied with and we may not accept new information that does not comply.

The Practice Direction also specifies that you can provide written submissions on why you disagree with the Department’s decision and on any claim or matter you presented to the Department that was not considered.

15    The Authority did not receive any further correspondence from or on behalf of the Appellant. The Appellant did not receive the email sent to him by the Authority because he was in prison and was not permitted to use or access the internet: Corrections Regulations 2019 (Vic) reg 65(1)(o), made pursuant to the Corrections Act 1986 (Vic) s 112.

16    On 9 July 2020, the Authority again purported to affirm the Minister’s decision to refuse the visa application.

PROCEEDING IN THE CIRCUIT COURT

17    By amended application dated 1 September 2020, the Appellant applied to the Circuit Court for review of the Authority’s decision on three grounds, only two of which are presently relevant:

(1)    The Authority wrongly relied on the Appellant’s appointment of Mr Pena‑Rees as representative and authorised recipient when such appointment had been spent, had otherwise ceased to be valid, or had become stale, by the time the matter was remitted to the Authority for reconsideration, resulting in a process of decision‑making which was unreasonable.

(2)    The Authority was disabled from performing its review because of the Secretary’s failure to comply with his obligation under s 473CB(1)(d) of the Act to provide the Authority with the Appellant’s residential address.

18    In relation to the second ground of review (and as recorded in the primary judge’s reasons at [39]), although the Minister conceded that the Secretary had failed to provide the Appellant’s residential address, the Minister submitted that the error was not material.

19    On 24 January 2022, the Circuit Court dismissed the application for review. The primary judge did not accept that Mr Pena‑Rees’ appointment as authorised recipient had been spent or otherwise ceased by the time the matter was remitted to the Authority for reconsideration (at [29], [32] and [34]–[35]). The primary judge also concluded that the failure to comply was not material because the Authority was not under an obligation to send correspondence to the Appellant as the Appellant had appointed an authorised recipient (at [40]). Furthermore, the letter addressed to the Appellant did not add anything to the practice direction which was publicly available (at [42]–[43]). The Appellant had received a copy of an earlier version of the practice direction when his matter was first referred to the Authority in 2017 (at [42]).

THE APPEAL TO THIS COURT

20    By his notice of appeal, the Appellant raised two grounds of appeal:

(1)    the Circuit Court erred by failing to find that the Authority fell into jurisdictional error when it wrongly relied on the Appellant’s appointment of Mr Pena‑Rees as representative and authorised recipient by the time the matter was remitted to the Authority for reconsideration, resulting in a process of making a decision which was unreasonable; and

(2)    the Circuit Court erred in finding that the Secretary’s failure to comply with his obligation under s 473CB(1)(d) of the Act to provide the Authority with the Appellant’s residential address was an immaterial error.

21    For the reasons set out below, the Secretary’s conceded failure to comply with his obligation under s 473CB(1)(d) of the Act resulted in jurisdictional error and accordingly the appeal must be allowed. It is unnecessary to consider the Appellant’s alternative first ground of appeal.

STATUTORY SCHEME

22    Under pt 7AA, the Authority must review a “fast track reviewable decision” (as defined in s 473BB of the Act) made by the Minister refusing to grant a protection visa to a “fast track applicant” (as defined in s 5(1) of the Act): s 473CC(1). The scheme of pt 7AA of the Act was explained by Gageler, Keane and Nettle JJ in detail in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 225–232 [13]–[38]; [2018] HCA 16 and by Nettle and Gordon JJ in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 99–101 [60]–[66]; [2019] HCA 50.

23    As Kiefel CJ and Gageler J observed in CNY17 268 CLR at 82–3 [4], the fast track review process is achieved through three cumulative and consecutive statutory duties:

(1)    under s 473CA, the Minister must refer a fast track reviewable decision to the Authority;

(2)    under s 473CB, the Secretary must give to the Authority specified categories of “review material” in respect of a fast track decision referred under s 473CA; and

(3)    under ss 473CC(1) and 473DB(1), the Authority must review the fast track reviewable decision by considering the review material provided to it under s 473CA.

24    Subject to the Authority exercising its powers to get (s 473DC) and to consider (s 473DD) “new information” (as defined in s 473DC(1)), the Authority must conduct its review without accepting or requesting new information and without interviewing the referred visa applicant: s 473DB(1).

25    Section 473CB provides:

(1)    The Secretary must give to the … Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

(a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

(ii)    refers to the evidence on which those findings were based; and

(iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)    the following details:

(i)    the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)    the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)    the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)    if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)    if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)    The Secretary must give the review material to the … Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

26    Also relevant to the present appeal is the concept of an “authorised recipient” provided for in s 473HG, which is in the following terms:

(1)    If:

(a)    a fast track reviewable decision in respect of a referred applicant is referred for review; and

(b)    the referred applicant gives the … Authority written notice of the name and address of another person (the authorised recipient) authorised by the referred applicant to receive documents in connection with the review;

the Authority must give the authorised recipient, instead of the referred applicant, any document that it would otherwise have given to the referred applicant.

Note:    If the … Authority gives a person a document by a method specified in section 473HB, the person is taken to have received the document at the time specified in section 473HD in respect of that method.

(2)    If the … Authority gives a document to the authorised recipient, the Authority is taken to have given the document to the referred applicant. However, this does not prevent the Authority giving the referred applicant a copy of the document.

(3)    Subject to subsection (4), the referred applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the referred applicant’s authorised recipient.

(4)    In addition to the referred applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.

(5)    This section does not apply to the … Authority giving documents to, or communicating with, the referred applicant when the referred applicant is appearing at an interview with the Authority.

27    The effect of s 473HG(1) is that, if a referred applicant gives the Authority written notice of the name and address of another person who is authorised by that applicant to receive documents in connection with the review, the Authority must give that other person, instead of the referred applicant, any documents that the Authority would otherwise have given to the referred applicant. Under s 473HG(3), the referred applicant may vary or withdraw such a notice. Under s 473HG(2), if the Authority gives a document to such an authorised recipient, the Authority is taken to have given the document to the referred applicant, although the Authority is not prevented from giving the referred applicant a copy of the document. The intended effect of s 473HG is to eliminate uncertainty as to whether a document has been given to a referred applicant: see Le v Minister for Immigration and Citizenship (2007) 157 FCR 321 at 326 [25]; [2007] FCAFC 20, which considered equivalent provisions in s 494D of the Act.

CONSiDERATION OF GRoUND 2

Concession

28    As referred to above, it was conceded below that the Secretary failed to comply with s 473CB(1)(d) by failing to provide the Authority with details of the Appellant’s residential address (see the primary judgment at [39]). The concession relates to the time following the remittal of the matter to the Authority for reconsideration. There was no suggestion that the Secretary had failed to provide the Appellant’s residential address when the Minister first referred the matter to the Authority for review. The concession recognised that upon remittal, the Secretary’s obligation under s 473CB was re‑enlivened because, after making its written statement, the Authority returned the documents to the Secretary pursuant to s 473EA(4).

Did the Secretary’s failure result in jurisdictional error?

29    In its most generic sense, jurisdictional error refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision lacking the characteristics necessary for the decision to be given effect by the statute pursuant to which it was purportedly made: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 133 [24] (per Kiefel CJ, Gageler and Keane JJ); [2018] HCA 34.

30    The issue for determination in the present case concerns the Secretary’s non‑compliance with s 473CB(1)(d) which may be considered to be a “precondition” to the exercise of the Authority’s jurisdiction to conduct a review.

31    Whether non‐compliance with an antecedent statutory requirement results in an invalid exercise of decision‑making power requires consideration of two questions:

(1)    First, was the antecedent requirement a precondition which the statute requires to be observed in order for the decision‑maker to embark on the decision‑making process: see Hossain 264 CLR at 132 [23], [27] per Kiefel CJ, Gageler and Keane JJ. The issue here is whether, as a matter of statutory construction, the duty of the Secretary to give the Authority the details provided for in s 473CB(1)(d) was a “precondition” to the Authority’s jurisdiction to conduct a review; and

(2)    Second, if the statutory requirement was a precondition to the exercise of power, did the non‑compliance result in a decision lacking statutory force? Ordinarily, the failure of the condition precedent will result in jurisdictional error only if the non‑compliance could realistically have made a difference to the decision that the Authority in fact went on to make. This is a factual inquiry involving a counterfactual analysis: CNY17 268 CLR at 95–6 [46]–[47] per Kiefel CJ and Gageler J.

32    The central issue is whether the Secretary’s statutory duty to provide the Authority with details of the Appellant’s address as referred to in s 473CB(1)(d) was, as a matter of statutory construction, a precondition to the valid exercise of the Authority’s decision‑making power.

33    Whether the statutory duty is a precondition to the valid exercise of decision‑making power depends upon whether there can be discerned a legislative intent to invalidate a decision affected by a breach of the statutory duty. The legislative intent is discerned by examining the purpose of the duty in the context of the particular statutory scheme and the effect of a failure to comply with that duty in the context of the statutory scheme: Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 33 [26]; [2015] HCA 51 per Gageler and Keane JJ; EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299 at 307 [32]–‍[34]; [2019] FCAFC 20.

34    The first question (at para [31](1) above) thus requires a consideration of the structure of pt 7AA of the Act. There are instances in pt 7AA of the Act where the legislature has expressly provided that non‑compliance with a statutory requirement does not affect the validity of a decision. Examples are ss 473EA(5) and 473FC(3). Section 473CB is not such an instance. The consequences of non‑compliance with s 473CB must be discerned from its place in the statutory scheme.

35    Having regard to its role in the statutory scheme, compliance with s 473CB(1)(d) is a statutory precondition to the Authority exercising its jurisdiction. As Kiefel CJ and Gageler J said in CNY17 268 CLR at 85 [14] (dissenting in the result but not on this point) (emphasis added):

[The structure of pt 7AA of the Act] makes compliance by the Secretary with the duty to give the specified review material to the Authority, including the review material specified in s 473CB(1)(c), a precondition to the Authority exercising jurisdiction to review the fast track reviewable decision that has been referred to it by the Minister.

Their Honours’ statement encompassed the entirety of the “review material” provided for in s 473CB(1) which includes the details provided for in s 473CB(1)(d). There is no reason to read the statement down as covering only the material provided for in paras (b) and (c) or paras (a), (b) and (c).

36    The mandatory language of s 473CB(1) is consistent with this conclusion. The Secretary must give the Authority the review material: EVS17 268 FCR at 308 [32]. The legislative contemplation is that the Authority is to receive from the Secretary the totality of the statutorily specified review material.

37    In the context of the statutory scheme, a failure by the Secretary to comply with s 473CB(1)(d) may prevent the Authority from conducting the “review” contemplated by pt 7AA. Part of the scheme provided for in pt 7AA is the Authority’s discretion to obtain and consider new information. Depending on the circumstances, the Authority’s failure to exercise its discretion to obtain new information may amount to legal unreasonableness: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34, cited in Minister for Home Affairs v DUA16 (2020) 385 ALR 212 at 220 [27]; [2020] HCA 46. The details provided for in s 473CB(1)(d) are critical to the Authority’s ability to exercise its discretion to obtain new information from a referred applicant or to invite a referred applicant for an interview. The Authority cannot be disabled from exercising its discretion by non‐compliance with the Secretary’s statutory duty.

38    The Minister conceded that the provision of the review material referred to in s 473CB(1)(b) and (c) was a necessary precondition to the Authority’s exercise of jurisdiction. The Authority’s review is to be conducted by considering the review material and only that material, absent an exercise of its discretion to get and consider new information (see para [24], above). Absent the provision of the material provided by the referred applicant to the delegate making the decision and any other relevant information, the Authority would be unable to conduct a review. The same might be said of s 473CB(1)(a), for without the provision of a statement setting out the reasons for the delegate’s decision, the Authority would be unable to meaningfully understand the decision it was to review. A failure to comply with sub‑ss 473CB(1)(a), (b) and (c) would affect the ability of the Authority to carry out its function under s 473CC in the manner prescribed by s 473DB.

39    The Minister contended that the details referred to in s 473CB(1)(d) were of a different character. It was submitted that a failure to provide these details does not prevent the Authority from conducting the review contemplated by pt 7AA and therefore the provision of those details is not a precondition to the exercise of the Authority’s decision‐making power.

40    The Minister submitted that the requirement to provide the details in s 473CB(1)(d) was not a precondition, breach of which was capable of giving rise to jurisdictional error, because a breach of s 473CB(1)(d) would not affect any particular power, function or duty of the Authority (in the sense used by the High Court in DUA16 385 ALR at 218 [18]) for two reasons:

(1)    First, the High Court has made clear that there is no general obligation on the Authority to advise referred applicants of their opportunities to present new information: DUA16 385 ALR at 220 [27].

(2)    Second, the Appellant had appointed an authorised recipient. This had two consequences. The Authority was required to give any document to the authorised recipient and not to the Appellant and, by giving a document to the authorised recipient, the Authority is taken to have given the document to the Appellant. Accordingly, there was no obligation on the Authority to provide information directly to the Appellant. Given the absence of a duty on the Authority to correspond with the Appellant, compliance with the requirements of s 473CB(1)(d) was not a precondition to the exercise of the Authority’s power to conduct its review.

41    The Minister’s submission is not accepted. For the reasons set out above, it is contrary to CNY17 268 CLR at 85 [14] per Kiefel CJ and Gageler J and fails to have regard to the objective purpose of s 473CB(1)(d) in the context of pt 7AA of the Act. Although under s 473HG(1) of pt 7AA, a referred applicant may choose to appoint an authorised recipient to receive documents from the Authority “if a fast track reviewable decision in respect of a referred applicant is referred for review”, the existence of that choice does not obviate the need for the Authority to have the referred applicant’s address as referred to in s 473CB(1)(d), for the following reasons:

(1)    First, there is no obligation for a referred applicant to choose to appoint an authorised recipient.

(2)    Second, there is no time by which the appointment of an authorised recipient must be made following the referral of the decision to the Authority. By contrast, the Secretary has an obligation to provide the review material (including the s 473CB(1)(d) details) at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority: s 473CB(2).

(3)    Third, even if a referred applicant chooses to appoint an authorised recipient to receive documents, the referred applicant is free to revoke that appointment: s 473HG(3).

(4)    Fourth, although there is no requirement for the Authority to send a copy of a document to a referred applicant in addition to sending it to the authorised recipient, the Authority is not precluded from doing so: s 473HG(2). The Authority is entitled to send a courtesy copy of a document to a referred applicant and it chose to do so in the present case. The Authority should not be effectively disabled from sending a copy if it considers it appropriate to do so, as occurred in the present case.

42    For these reasons, in the context of the operation of the statutory scheme in Pt 7AA of the Act, the provision of the details provided for in s 473(1)(d) was a necessary precondition to the exercise of the Authority’s jurisdiction. A failure to provide those details was a breach capable of giving rise to jurisdictional error.

43    However, that is not the end of the matter. It is necessary to distinguish the statutory conditions of the conferral of decision‑making authority from the statutory consequences of breach of those conditions. Generally, a statute requiring a condition to be observed is not to be interpreted as denying legal force and effect to every decision made in breach of the condition. Ordinarily, a statute is to be interpreted as incorporating a threshold of materiality in the event of non‑compliance. A precondition to the exercise of a decision‑maker’s jurisdiction is not interpreted so as to result in the invalidity of the decision made where there is a breach of the precondition, unless the non‑compliance that in fact occurred was material. Materiality is established if the non‑compliance deprived the Appellant of the realistic possibility of a different outcome: Wei 257 CLR at 32 [23], 33–4 [26]–[28] (per Gageler and Keane JJ); Hossain 264 CLR at 133–4 [27]–[30] (per Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 444–5 [44]–[45] (per Bell, Gageler and Keane JJ), 452–3 [72] (per Nettle and Gordon JJ); [2019] HCA 3; MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at 597–600 [30]–[39] (per Kiefel CJ, Gageler, Keane and Gleeson JJ); [2021] HCA 17; Nathanson v Minister for Home Affairs [2022] HCA 26 at [1], [30]–[31] (per Kiefel CJ, Keane and Gleeson JJ), [45] (per Gageler J).

44    There was no suggestion that this ordinary rule of interpretation did not apply to s 473CB. The Full Court in BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74 said at [62]:

the legal consequence on judicial review (if any) of the Secretary’s non‑compliance with the s 473CB(1) duty will rest upon the effect of the absence of the material concerned on the Authority’s conduct of the review. That is what the Full Court said in [Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 (2021) 285 FCR 381 at 404 [78]–[79]; [2021] FCAFC 58] … Not every instance of non‑compliance will have an effect, or a possible effect, on the Authority’s performance of its statutory task.

Thus, it is only if the breach of the precondition was material to the Authority’s decision that the Secretary’s failure to provide the details to the Authority would result in the Authority committing jurisdictional error.

45    In the course of the hearing of this appeal, the Minister conceded that the breach of the Secretary’s obligation was material. The Minister’s concession was correctly made. The Authority had in fact attempted to contact the Appellant by an email to a personal email address. If the Authority had known that the Appellant’s current residential address was a correctional centre, having sought to send material directly to the Appellant by email, there is a realistic possibility that the Authority would have sought to contact the Appellant by means other than by a Hotmail email address. The unchallenged evidence of the Appellant and his Victorian Legal Aid representative (who represented him during the judicial review proceedings) before the primary judge was that if the Appellant had received the letter from the Authority, the Appellant would have provided new information and made further submissions.

46    In the circumstances of this case, the result of the Secretary’s non‑compliance was the denial of the Appellant’s opportunity to provide new information to the Authority and make further submissions because the Appellant never received the notice from the Authority. As matters transpired, the Authority reconsidered the matter and based its decision on new country information which post‑dated the Minister’s decision. In these circumstances, the Authority may have been satisfied of the matters referred to in s 473DD for the consideration of new information. For these reasons, if the Secretary’s obligations had been complied with, there is a realistic possibility that the Authority’s decision would have been different.

Conclusion

47    The Secretary’s conceded non‑compliance with s 473CB(1)(d) resulted in the failure of a “precondition” to the exercise of the Authority’s jurisdiction to conduct a review. The failure was material in the circumstances. The Authority was disabled from conducting the review contemplated by pt 7AA because the details which the Secretary failed to provide could realistically have affected the outcome of the review. The Secretary’s failure thereby resulted in the Authority falling into jurisdictional error.

48    The appeal should be allowed with costs. The orders made by the Circuit Court on 24 January 2022 should be set aside and in lieu thereof:

(a)    a writ of certiorari be issued quashing the decision of the Second Respondent dated 9 July 2020;

(b)    a writ of mandamus directed to the Second Respondent be issued requiring it to review the decision of the delegate of the First Respondent made on 23 May 2017 according to law; and

(c)    the First Respondent pay the Applicant’s costs of the proceeding.

Associate:    

Dated:    1 September 2022