Case: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 
Outcome: cited
the reasons which I have thus far outlined, Nicholls FM observed that he had been unable to distil any indication of a denial of procedural fairness on the part of the Tribunal below, notwithstanding the case foreshadowed to the Federal Magistrates Court to that effect. His Honour additionally observed on that subject that the Tribunal, in its later letter of 13 March 2003, had put the first appellant on notice that if he did not attend the Tribunal hearing, the consequences might be that the Tribunal would 'make a decision on your case without further notice' (see in that regard what appears in the first paragraph of the Tribunal's reasons for decision of 28 April 2003 under the heading 'Finding and Reasons' ). So much was described by his Honour as an indication by the Tribunal that any rejection of the invitation would lead to the kind of ' inevitable consequence ' spoken of by the Full Federal Court in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] (French, Emmett and Dowsett JJ). However as Nicholls FM recorded, there was no attendance by or on behalf of any one or more of the present appellants, being a non-attendance which was unexplained, with the consequence of the Tribunal being '... authorised to proceed to decide the review in the applicant's absence' , his Honour citing ( inter alia ) VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [16] (Sundberg and Hely JJ), and referring to s 426A of the Migration Act . Nicholls FM acknowledged that country information issues raised at the instance of the Minister which gave rise to a breach of common law procedural fairness may in particular occur '... where the information is critical to the Tribunal decision, and the applicant is not on notice of the issues raised by the information' , and in those situations, the applicant for relief 'clearly should not be caught unawares or be in the dark about the case against him' . It was pointed out by his Honour however that '[i] n the case before me and in relation to the use of country information in the context of fairness the applicant was given the opportunity to attend a hearing before the Tribunal', and accordingly '[i] n circumstances where the Tribunal had put the applicant on notice that on what was before it, it could not make a decision in his favour... [then] [i] n the context of the common law principles of procedural fairness the applicant cannot now complain when he chose not to take up that opportunity' . Nicholls FM referred in that context to the following passage in the reasons for judgment in NAVX at [5]: assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.'