The Federal Court recently held that the Migration Review Tribunal  failed in procedural fairness when it did not follow up at all on its hearing invitation to an applicant when there was no response and no appearance by the appellant. The courts held that it was a failure of the Tribunal to fulfil its obligations under s.360

Kaur v MIBP [2014] FCA 915 was an appeal from a judgment of the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (the tribunal). The tribunal had affirmed the delegate’s decision not to grant Kaur’s Student (Temporary) (Class TU) Subclass 572 visas on the basis that there was insufficient evidence of ‘financial capacity’ to undertake studies in Australia.

In this case there were two hearings scheduled. Kaur and the tribunal maintained a significant number of communications over a period of 5 months after the first hearing. The tribunal posted an invitation to Kaur inviting her to attend a further hearing. The hearing invitation was returned to the tribunal marked ‘RTS’. Kaur did not respond to the hearing invitation or attend the further hearing. The tribunal then proceeded to affirm the decision under review.

The Federal Circuit Court, in the initial appeal, concluded there was no jurisdictional error, finding that the tribunal was not obliged to have followed up the non-response to the second hearing invitation and the evidence did not suggest that the tribunal’s exercise of the discretion was ‘capricious’

However, on further appeal to the Federal Court, it was held that the tribunal’s exercise of power under s.362B(1) of the Migration Act (Cth) 1958 was legally unreasonable and therefore exceeded its jurisdiction. Given the history of contact between the tribunal and the appellant, including proactive contact from the tribunal, it was inexplicable why there was no attempt to contact the appellant. The tribunal ought to have realised her non-response to the hearing invitation and failure to attend the hearing was, given her past behaviour, out of character.

The court held that even if the tribunal’s exercise of power under s.362B was not legally unreasonable, there was a denial of procedural fairness by the tribunal to the appellant. Having decided that it needed to hear again from the appellant, for the tribunal to make a decision on the review without making any attempt to get in touch with her by phone or email when she did not respond to the hearing invitation or appear before it was a failure to give her a reasonable opportunity to present her case.

Issuing the hearing invitation and then not following up at all when there was no response and no appearance by the appellant was a failure to fulfil its obligations under s.360