Case: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Outcome: considered
the Act gave the Tribunal the discretion to proceed or not once the appellant did not appear on 22 March 2001. The Tribunal did not have to give reasons for its exercise of discretion under s 426A because s 430 of the Act did not require it to do so. In Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [27] , the full court held that where the Tribunal had sent to an applicant for a review, at his address for service, a letter inviting him to a hearing in accordance with ss 425 and 425A in circumstances where s 422B was not then in force, the mere fact that the Tribunal received the letter back with a return to sender endorsement did not oblige the Tribunal to do anything further to search in its files to see other addresses at which the applicant may be contacted. Their Honours said ([2006] FCAFC 73 [38]-[39]): 'The respondent says the Tribunal was on notice that he may not have received the letter because the "Response to Hearing Invitation" form was not returned, because the letter to his residential address was returned unclaimed, and because he did not appear at the hearing. The respondent says that in these circumstances, the Tribunal was obliged under s 425 to search both its own and the Department file to attempt to find another method of contacting the respondent. He says that in this case, the Tribunal had an obligation to contact the migration agent listed if the respondent's Department file to find more recent contact details, and possibly also to ring the residential telephone number contained in the respondent's protection visa application. The submissions of the respondent in this respect are rejected. In view of the decision in VNAA it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s 425A (in fact, two) was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.' The appellant distinguishes that decision on the basis that this matter had proceeded one stage further in that the appellant had been contacted, and had indicated she wished to attend the hearing. The obligation under s 425 , at the time at which the appellant's claim came to be considered by the Tribunal, was to invite the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That was complied with. Whether the appellant took up the invitation seems to me to be a matter for the appellant at the end of the day. The Tribunal's obligation had been discharged. I think that a construction of s 426A(1) that obliged the Tribunal to accord natural justice to an applicant for review if they did not appear in accordance with s 426A(1)(b) , was at odds with the express words of the discretion in the section. Those words are that: '[It] may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.' It seems to me to be quite inconsistent with those words to construe the obligations of procedural fairness to require the decision maker to give the applicant an opportunity to retrieve his or her position after a failure to appear in that situation.