Case: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1
Outcome: referred to
By letter dated 27 April 2005, the Tribunal invited the appellant to a hearing. He did not attend. The Tribunal was advised by the Department that the Department had lost its file and, on 20 May 2005, it wrote to the appellant inviting him to provide a copy of his application for a protection visa and any documents or information in support of his application. He did not respond to the letter. It is hard to see what more the Tribunal could have done to afford the appellant an opportunity to present his case. The Magistrate found that, in essence, the appellant's claims in his statement (which was not before the Tribunal) were fairly reproduced in the record of decision (which was before the Tribunal). This is not a case like that which was before the High Court in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 (" Applicant NAFF "). This is not a case in which the Tribunal's letter dated 20 May 2005 indicated that the Tribunal member considered that the review was not complete until certain steps were carried out and those steps were not carried out (see Applicant NAFF at [31]-[33]). The Tribunal's letter dated 20 May 2005 did not refer to a further invitation to attend a hearing, but simply invited the appellant to provide documents or information. The appellant chose not to do that. 26 I raised with the parties one further matter. I raised with the parties whether, in the circumstances, the Tribunal was entitled to proceed to make a decision on the review without, after 20 May 2005, extending another invitation to the appellant to attend a hearing. The Tribunal said: "The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear and did not respond to any correspondence correctly addressed to him. In these circumstances, and pursuant to s 426A of the Act , the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it." 27 I am satisfied that the Tribunal was entitled to proceed in the manner in which it did. Under s 426A of the Act , the Tribunal could proceed to make a decision on the review, or it could take further action to allow or enable the appellant to appear before it. By writing the letter dated 20 May 2005, the Tribunal did not take further action to allow or enable the appellant to appear before it but, rather, gave the appellant the opportunity to provide documents or information. The appellant did not take up that opportunity, and the power to proceed to make a decision on the review on the basis that the appellant did not appear at a proposed hearing on 20 May 2005 remained available to the Tribunal. Alternatively, the letter from the Tribunal dated 20 May 2005 was a request by the Tribunal for additional information under s 424(2) of the Act and, on the appellant's failure to provide it, the Tribunal was entitled to proceed in the manner in which it did (s 426C and s 425(2)).