CNY17 v Minister for Immigration and Border Protection
It is well-known that applications by unauthorized maritime arrivals rarely succeed in a judicial setting due to the harsh procedural legal requirements of Part 7AA – also known as fast-tracked decisions.
Statistics released by the Immigration Assessment Authority (“IAA”) (special decision dealing with fast-tracked decisions) shows that in the 2018 financial year, only 10% of applications by unauthorized maritime arrival cases were successful and were remitted back to the Department for consideration. 72% of the unsuccessful cases will go onto seeking a judicial review at a higher court e.g. Federal Circuit Court of Australia, Federal Court of Australia etc. Of these cases, only around 30% are successful.
Recently, there has been a successful case raise ‘reasonable apprehension of bias’ as a reasonable ground.
In the case of CNY17 v Minister for Immigration and Border Protection, the High Court of Australia held that:
Some of the material which the Department of Home Affairs gave to the IAA were not relevant to the assessment of the legal requirement of the visa but the presence of which would be capable of rationally affecting the assessment by inference that the applicant is a person of bad character or a person who would be unworthy of being granted permission to remain in Australia.
In this case, it was particular information/records about prior conviction(s) which were held to be highly prejudicial information (not relating to the merits of the decision) such that a reasonable person would not dismiss the possibility that the IAA may have been affected by that information subconsciously. They could be convictions of serious sexual assault or even non controversial offences. The principle is to consider whether a reasonable person would not dismiss the possibility that there may have been bias affecting the decision due to the highly prejudicial material.
Even if the decision record did not mention the particular information/record, meaning it was not material to the decision or that little consideration was placed on that information, it would nonetheless have affected the decision-maker in being prejudicial or give rise an apprehension of bias.
As such, this case was successful and was remitted.
How Can Agape Henry Crux Help You
If you want to find out more about your eligibility or need advice on your Australian migration matter, please do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-7200 2700 or email us to book in a time at info@ahclawyers.com.
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