Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER, NETTLE, GORDON AND EDELMAN JJ

MINISTER FOR IMMIGRATION AND BORDER PROTECTION APPELLANT

AND

SZVFW & ORS RESPONDENTS

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 8 August 2018 S244/2017

ORDER

1. Appeal allowed.

2. The order made in paragraph 1 of the order of the Full Court of the Federal Court of Australia dated 2 March 2017 be set aside and, in its place, order that:

(a) the appeal be allowed; and

(b) the order of the Federal Circuit Court of Australia dated 19 August 2016 be set aside and, in its place, order that the application be dismissed.

3. The appellant pay the first and second respondents' costs of this appeal.

On appeal from the Federal Court of Australia

Representation

N J Williams SC with P D Herzfeld and M T Sherman for the appellant (instructed by Sparke Helmore Lawyers)

K A Stern SC with L Andelman for the first and second respondents (instructed by Kinslor Prince Lawyers)

Submitting appearance for the third respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Border Protection v SZVFW

Migration – Refugee Review Tribunal – Review of decisions – Where first and second respondents sought review by Refugee Review Tribunal ("Tribunal") of decision of delegate of appellant to refuse applications for protection visas – Where respondents failed to respond to invitations from Tribunal to appear or provide submissions – Where s 426A(1) of Migration Act 1958 (Cth) empowered Tribunal to proceed to make decision on review without taking further action to allow or enable respondents to appear – Where Tribunal made decision to proceed under s 426A(1) – Whether Tribunal's decision to proceed in absence of respondents was legally unreasonable.