By Andrew Yuile -
Key decisions
- Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
- DL v The Queen [2018] HCA 32
- The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40
- Mighty River International Limited v Hughes; Mighty River International Limited v Mineral Resources Limited [2018] HCA 38
- Pipikos v Trayans [2018] HCA 39
ADMINISTRATIVE LAW – APPELLATE REVIEW
Migration – unreasonableness – proper standard of review on appeal
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (8 August 2018), the High Court considered unreasonableness in a Tribunal’s decision to dismiss a case for non-appearance and considered the role of a court on appeal from the decision of a lower court.
The respondent and his wife had applied for protection visas, which were refused by a delegate of the Minister. The respondents sought review before the Refugee Review Tribunal (‘RRT’). The respondents were invited to a hearing before the RRT, but did not appear. Section 426A(1) of the Migration Act 1958 (Cth) allowed the RRT to adjourn the hearing or to make a decision on the review without waiting if the applicant failed to attend. The RRT affirmed the decision under review.
On judicial review, the Federal Circuit Court held that the RRT’s decision to proceed was legally unreasonable because it was not necessarily clear that the respondents were aware of the hearing and there were other steps the RRT could have taken to alert them to the hearing before proceeding. The Full Federal Court upheld this decision. Importantly, the Full Court held that the Minister was required to demonstrate appealable error of fact or law akin to that required in appeals from discretionary judgments (that is, on the principles from House v The King (1936) 55 CLR 499). The Full Court held this had not been done.
