Although much ink was spilled (and a lot of fees incurred) arguing about the bounds of legal unreasonableness, Minister v SZVFW [2018] HCA 30 was basically a case about service. Consider the following facts:
- The Applicants applied for a protection visa. Their application contained their contact details (incl address) and they acknowledged that they would keep the Department informed of any changes in those details. They get invited to an interview and fail to attend. Their visa application was refused;
- They lodged an application for review in the AAT. The AAT sent out a notice inviting them to a hearing and they didn’t attend. In the absence of the applicants the AAT affirmed the decision under review;
- The Applicants then went to the the Federal Circuit Court seeking judicial review of the AAT refusal on the basis that it was unreasonable to decide the matter in their absence. The Judge found that the AAT had acted unreasonably by not following up the notice with an email or a phone call;
- The Minister then appealed to the Full Federal Court Circuit. The Circuit Court decision survived the appeal.
Unfortunately for the Applicants, the Minister was very persistent. Special leave was obtained in the High Court and the HCA took the view that the AAT had done nothing wrong. Once the notice was sent to the nominated address in accordance with the service provisions of the Migration Act (whether it was received or not) the AAT was entitled to proceed in the way it did (under section 426A). In fact based on the Applicant’s past performance the Court observed that “following up” was probably going to be futile in any event.
Apart from being a useful review of the law of unreasonableness, the case is also interesting for the discussion (ie a wrap over the knuckles to the Federal Court) about the role of appellate courts, the exercise of discretion and the principles in House v The King.
Creative commons acknowledgment for the photograph.
