Federal Court (Full Court). Generally speaking, if a protection visa is refused, the IAA (not the AAT) has jurisdiction to review the refusal if the applicant "is" an Unauthorised Maritime Arrival (UMA). Can a person cease to be a UMA upon the grant of a visa? Does the the judgement of the plurality of the High Court in AUS17 setting out the sequence in which the IAA should approach the tasks of assessing new information for the purposes of s 473DD provide a mere guidance?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can a person cease to be a UMA upon the grant of a visa, with the result that the AAT (not the IAA) has jurisdiction to review the refusal?
Question 2: "In AUS17 the plurality of the High Court set out the way in which the Authority should approach the task of assessing new information for the purposes of s 473DD [of the Migration Act 1958 (Cth)]. Namely, that the Authority must assess new information first against the criteria in s 473DD(b)(i) and (ii), unless the new information in question is not capable of such assessment, and then against the criteria in s 473DD(a). If either or both of the criterion in s 473DD(b)(i) or (ii) is satisfied, that is a circumstance to be taken into account in assessing s 473DD(a) of the Act". Is this no more than “guidance” on the process to be adopted by the IAA?
Question 3: In order to discharge the onus of proof concerning the materiality of an error, does a judicial review applicant (whether at first instance or on appeal) need to make submissions concerning materiality?
Question 4: In what circumstances, if any, can the implementation or enforcement of a law of general application amount to persecution within the meaning of s 5J(1)(a)?
The FCAFC answered those questions as follows: