On 30 June 2020 the High Court of Australia delivered judgment in Minister for Immigration and Border Protection v CED16  HCA 24, unanimously allowing the Minister’s appeal and accepting the Minister’s submissions without hesitation. The HWL Ebsworth team acting for the Minister was led by Sophie Given (Partner) and Sophie Lloyd (Special Counsel), instructing Geoffrey Johnson SC and Bora Kaplan of Counsel.
The appeal was from a judgment of his Honour Justice Derrington of the Federal Court of Australia, setting aside a decision of the Immigration Assessment Authority, a body tasked with reviewing a decision of the Minister’s delegate to refuse to grant the visa applicant, CED16, a protection visa.
The appeal concerned a small but significant question of statutory interpretation, being the meaning of the term ‘new information’ for the purposes of s 473DC(1) of the Migration Act 1958 (Cth). Justice Derrington had found that an invalid non-disclosure certificate that had been referred to the Authority constituted ‘new information’ and that the Authority had engaged in a jurisdictional error by having regard to the information without considering whether to put it to the visa applicant comment.
This point did not arise on the grounds of the appeal and the parties were not invited to comment on it at the hearing (or subsequently). In a joint judgment, Gageler, Keane, Nettle and Gordon JJ noted that Derrington J had “adopted a path of reasoning not canvassed in the parties’ submissions”, with this case demonstrating the danger and unfairness of a trial judge deciding a case on a basis not put to those appearing.
In a concise judgment that drew together and synthesised a number of existing authorities, the Court adopted the reasoning of the Minister at both the special leave and appeal stages, unanimously holding that the term ‘information’ should be interpreted to mean the communication of knowledge about some particular fact, subject or event that is of an evidentiary nature. Justice Edelman agreed in separate reasons. The certificate in this case therefore was not a ‘document’ and did not contain any ‘information’ for the purposes of s 473DC(1) and no jurisdictional error was established.
This reasoning will be applied in the 100s of judicial review applications that are before the Courts at any one time (in many of which HWL Ebsworth acts), seeking review of the Authority’s decisions. Read the judgment here.
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