Federal Court (Full Court). Should the question of whether the IAA made a jurisdictional error be answered by reference to the circumstances as they existed at the time of its decision? Was the conclusion that Afghanistan had ceased to exist and the Islamic Emirate of Afghanistan had come into existence one about which judicial notice could be taken? Was the existence of a 'receiving country' a jurisdictional fact?
In 2017, at the time the Immigration Assessing Authority (IAA) affirmed a decision of a delegate to refuse to grant the Applicant a protection visa, Afghanistan existed as a country. At the time of the decision of the judicial review of the IAA's decision in late 2021, the Taliban had declared the Islamic Emirate of Afghanistan and Afghanistan ceased to exist.
The primary admitted into evidence a news media article about the change of regime and therefore held that the IAA's decision was "accordingly so illogical and irrational and wanting in evident justification as to amount to legal unreasonableness in the exercise of the review power conferred under Part 7AA”.
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Should the question of whether the IAA made a jurisdictional error be answered by reference to the circumstances as they existed at the time of the IAA's decision, instead of by reference to the time of the court's decision on judicial review?
Question 2: If the answer to Question 1 is 'yes', did the primary judge err in concluding that the article had any relevance within the meaning of s 55 of the Evidence Act?
Question 3: Was the conclusion that one country had ceased to exist (Afghanistan) and a different one had come into existence (Islamic Emirate of Afghanistan) one about which judicial notice could be taken or one based on findings of fact of which judicial notice could be taken?
Question 4: Can it be said that "the power vested in the IAA was “conditioned upon the existence of the country and the receiving country of which the applicant is found to be a national” and that the existence or otherwise of the country and receiving country was a jurisdictional fact"?
Question 5: Does the IAA have jurisdiction to review a decision that was affected by jurisdictional error?
Question 6: Is the existence of a decision to which Pt 7AA of the Migration Act 1958 (Cth) applies a jurisdictional fact?
Question 7: Could the existence or otherwise of a decision engaging Part 7AA be the subject of evidence on judicial review?
The FCAFC answered those questions as follows: