In Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40 the Full Court unanimously dismissed the Minister’s appeal, finding that on those facts, the Secretary’s breach of his obligation under s 473CB to provide all relevant documents to the IAA disabled the IAA from completing its review task. At [43]-[51] the Court rejected the Minister’s submission that the missing documents could not have made a difference to the outcome (applying SZMTA), essentially because the Minister’s submissions were ones as to the merits.
CPA16 follows EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 in which the Full Court discussed the differences between the obligations of the Secretary under Part 7 (s 418) and Part 7AA (s 473CB). There, the Court rejected the proposition that cases such as WAGP were relevant to breaches of the obligation under Part 7AA. The effect of EVS17 and CPA16 is that a breach of the obligation under Part 7AA is more likely to be a jurisdictional error than of the equivalent obligation under Part 7, with the focus on the materiality of the withheld information and whether there is a possibility that the withheld information could have made a difference. This is in contrast to WAGP and SZOIN, which, if correct, appear to limit findings of jurisdictional error to something more than mere materiality (see eg SZOIN at [64]: ‘at least without something more’).