Minister for Immigration and Border Protection v SZVFW [2018] HCA 30: Proceedings Without Respondent

Thursday 9 August 2018 @ 11.58 a.m. | Legal Research | Immigration

In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (8 August 2018), the High Court has unanimously held that a decision of the Refugee Review Tribunal ("the Tribunal") to proceed in the absence of the First and Second Respondents ("the Respondents") was not unreasonable, and that the Full Court of the Federal Court of Australia should have set aside a decision of the Federal Circuit Court of Australia which had found the Tribunal's decision to be unreasonable [see Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 (2 March 2017)].

Background

The Respondents sought review by the Tribunal of a decision made by the Minister to refuse their application for protection visas due to the fact that they failed to respond to numerous invitations from the Tribunal to appear before it in order to give evidence and present arguments.

The Tribunal wrote to the Respondents in May 2014, inviting them to provide material or written arguments on the review.  In August 2014, the Tribunal again invited the Respondents to appear before it at a hearing, but they did not contact the Tribunal or attend the hearing.

In the judgment, their Honours noted [at para 5]:

“… On the first occasion they neither responded nor sought to make contact with the Tribunal.  It observed that the respondents had likewise not attended an interview before the delegate's decision was made, although they had been invited to do so.  The second letter from the Tribunal, inviting the respondents to appear, contained advice that if they did not attend the scheduled hearing the Tribunal might proceed to make its decision without further reference to them … Expressing itself satisfied that the invitation had been sent to the respondents' last known address, the Tribunal decided to make its decision on the review.  That decision was adverse to the respondents …”

Facts of the Case

Their Honours noted [at para 99]:

“… The application gave as SZVFW and his wife's residential and postal address an address in Roselands, New South Wales.  SZVFW did not agree to the Department of Immigration and Border Protection ("the Department") communicating with him by fax, email or other electronic means.  He did provide a mobile number. Both SZVFW and his wife undertook to inform the Department if they intended to change their address for more than 14 days while their application was being considered.”

The Department advised SZVFW and his wife that their application had been refused on 16 April 2014.  The letter was addressed to the Roselands address.

Paragraph 105 of the judgment reveals that:

“… By a letter dated 15 August 2014, the Tribunal invited SZVFW and his wife to appear before it on 10 September 2014 (‘the Invitation Letter’).  The Invitation Letter was addressed to the Roselands address.  It was sent by ordinary post, not registered post.  The Invitation Letter stated, among other things, that [i]f you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.  Neither SZVFW nor his wife contacted the Tribunal or attended the hearing.”

The Tribunal’s Decision

The Tribunal sought to exercise its power under s 426A(1) of the Migration Act 1958 (the “Act”) which entitles them to make a decision on the Review Application without taking any further action to allow or enable SZVFW and his wife to appear before it.  The Tribunal affirmed the decision under review.

On 15 September 2014, SZVFW and his wife were informed by letter of the Tribunal's decision.  The letter was addressed to the Roselands address.  SZVFW and his wife sought judicial review of the Tribunal's decision.

The Respondents claim that the decision to proceed in their absence was legally unreasonable. Their Honours noted [at para 141] of the judgment:

“The decision by the Tribunal, for the reasons it gave, was not legally unreasonable … they [the respondents] undertook to inform the Department if they intended to change their address for more than 14 days while their applications were being considered.  No change of address was provided.  It was reasonable for the Tribunal to draw the inference that the respondents were still accessing mail at that address.  Secondly, the letter from the Department refusing the respondents' original applications was sent to their nominated address.  Thirdly, prior to the decision of the delegate, the respondents had not attended a scheduled interview with the Department, despite apparently being made aware of the interview by letters sent to their nominated address and a telephone call rescheduling the interview …”

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Sources:

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (8 August 2018)

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