HIGH COURT OF AUSTRALIA: Minister for Immigration and Border Protection v CED16 & ANOR - Protection Visa

Today the High Court unanimously allowed an appeal from a judgment of the Federal Court of
Australia. The issue raised by the appeal was whether an invalid certificate purportedly issued by a
delegate of the Minister for Immigration and Border Protection ("the Minister") under s 473GB of the
Migration Act 1958 (Cth) was "new information" within the meaning of s 473DC(1) of the Act. Section
473GB relevantly provides that the Minister may issue a written certificate certifying that certain
information given by the Secretary of the Department of Immigration and Border Protection ("the
Department") to the Immigration Assessment Authority ("the Authority") as part of the "fast track
review process" established by Pt 7AA of the Act should not be disclosed because it would ground a
claim of public interest immunity by the Commonwealth. Section 473DC(1) relevantly defines "new
information" to mean "documents or information" that "were not before the Minister when the Minister
made the decision [under review]" and that "the Authority considers may be relevant".

The first respondent's application for a protection visa was refused by a delegate of the Minister and this
decision was referred to the Authority for review under Pt 7AA of the Act. The "review material"
provided by a delegate of the Secretary of the Department to the Authority included a "Draft IMAPS
Identity Assessment Form" ("the Identity Assessment Form"). A certificate was purportedly issued
under s 473GB(5) ("the Certificate") certifying for the purpose of s 473GB(1)(a) that disclosure of the
information contained in the Identity Assessment Form would be contrary to the public interest
"because it is a Departmental working document". The Authority affirmed the delegate's decision and
an application for judicial review was dismissed by the Federal Circuit Court.

ORDER

1. Appeal allowed.

2. Set aside order 2 made by the Federal Court of Australia on 25 September 2018 and order 1 made by the Federal Court of Australia on 3 April 2019. In their place, order that the appeal from the judgment of the Federal Circuit Court of Australia given on 14 February 2017 be dismissed.

3. The appellant pay the first respondent's costs of the appeal to this Court.

Source: High-Court-Judgement-30-June-2020.pdf and High-Court-Order---30-June-2020.pdf