MZAPC v. Minister for Immigration and Border Protection & Anor

Lower Court Judgment

04/12/2019 Federal Court of Australia (Mortimer J)

[2019] FCA 2024

Catchwords

Migration law –Procedural fairness –Materiality –Where appellant applied for protection visa–Where appellant’s criminal record and related material provided to Administrative Appeals Tribunal(“AAT”)by first respondent without appellant’s knowledge –Where certificate under s 438ofMigration Act1958(Cth) issued in relation to criminal record and related material and appellant not notified of certificate–Where criminal record disclosed history of serious traffic offences–Where AAT affirmed delegate’s decision to refuse visa application–Where appeal to Federal Circuit Court dismissed –Where appeal to Federal Court dismissed –Where common ground that failure to notify appellant of certificate constituted denial of procedural fairness –Whether, when considering materiality of denial of procedural fairness occasioned by failure to notify appellant of s 438 certificate, appellant bore onus of rebutting presumption that AAT did not rely on documents subject to certificate and had to prove that documents had been taken into account by AAT –Whether Federal Court erred in finding that denial of procedural fairness immaterial on basis that offences disclosed in criminal record not rationally capable of impacting appellant’s credibility before AAT.