Australian Immigration Daily News

Suppose an applicant for a Protection visa does not respond to an invitation to appear at a hearing before the Administrative Appeals Tribunal.

Suppose further that the applicant does not in fact appear at the Tribunal on the date that has been fixed for the hearing, and does not contact the Tribunal to explain her/his absence.

In that circumstance, can the Tribunal lawfully proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear?

Or is it legally unreasonable, and therefore jurisdictional error, for the Tribunal to so proceed?

This was the question that was put before the Full Court of the Federal Court in the case of Minister for Immigration and Border Protection v SZVFW (2017) FCAFC 33, handed down on 2 March 2017.

The case came before the Full Court on an appeal by the Minister from a decision of Justice Barnes of the Federal Circuit Court in which the Court held that the Tribunal had acted unreasonably. 

The Full Court rejected the Minister’s claims that the decision of Justice Barnes was erroneous, and confirmed the decision of Justice Barnes that the Tribunal’s decision to proceed was legally unreasonable.

Why?

Well, first the background!

The applicant was a citizen of China who had originally come to Australia on a tourist visa in 2012. He was later joined  in Australia by his wife and their son.  He then lodged an application for a Protection visa. The basis of the applicant’s claims were that the village head in China had embezzled compensation money that he was owed as a result of the compulsory acquisition of his farmland, and that when he protested against this embezzlement, he was threatened with imprisonment and was placed under surveillance, prompting his family to flee from China.

The Department refused the application for the Protection visa, and the applicant then sought review before the AAT.

In the review application with the Tribunal, the applicant provided his residential address, a mobile phone number and an email address.

After the application for review was lodged, the AAT sent a letter to the address provided by the applicant acknowledging receipt of the review application.

It then sent a letter to the applicant inviting him to attend a hearing before the Tribunal.  This letter was sent by ordinary, not  registered post. Included with this letter was a “Response to hearing invitation” from with instructions that it should be completed by the applicant and his wife and returned to confirm their planned attendance at the hearing.  This form was not returned.

The scenario outlined at the beginning of this article then followed: the applicant did not appear at the scheduled hearing, and the Tribunal proceeded to decide the review without making further arrangements for the applicant to appear, and affirmed the refusal of the Protection visa.

At the Federal Circuit Court level, Justice Barnes concluded that the failure of the Tribunal to take further steps to allow the applicant to appear before it was legally unreasonable.

This what was key to Justice Barnes’s decision: Her Honour found that since the hearing invitation had been sent only by ordinary post, there had been no follow up in the absence of a response to the hearing invitation (i.e. the “Response to hearing invitation” form had not been returned to the Tribunal); the applicants were not represented either by a solicitor or by a migration agent; they had provided alternative means of contact in addition to post by providing their mobile phone number and email address; their attendance at a hearing could have made a difference in the outcome (inasmuch as the Tribunal recognized in its decision that there were a number of factual issues about which it could not be satisfied in the absence of a hearing; and, importantly, that the applicant had sought a Protection visa, and therefore his failure to attend the hearing carried particularly serious consequences for him.

It is important to note that the Full Court emphasized in its decision that the process of determining whether a decision of the Tribunal has been legally unreasonable is one that is made case-by-case, and turns on the specific facts of each individual case. It is not an assessment that is necessarily done by comparing the facts in one case to those in a previous case where jurisdictional error has occurred resulting from the Tribunal’s failure to adjourn a hearing or provide an opportunity for a further hearing.

Nonetheless, this case does suggest a fact pattern where it is at least possible that jurisdictional error will be found to exist.

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