CER15 v Minister for Immigration and Border Protection [2016] FCA 1057

CER15 v Minister for Immigration and Border Protection [2016] FCA 1057

The appeal failed because the Tribunal correctly identified and applied the complementary protection test under s 36(2)(aa), complied with its statutory obligations by sending the hearing invitation to the email address provided by the appellant, and was entitled to proceed under s 426A when the appellant did not appear. The appellant was taken to have received the email invitation, the primary judge found he actually received but did not open it, and the Tribunal also sent SMS reminders. In those circumstances there was no denial of procedural fairness and the decision to determine the review in the appellant's absence was not legally unreasonable.

Jurisdiction
Australia
Judgment Date
01 September 2016
Procedural Posture
Migration Appeal Concerning Refusal of a Protection (class Xa) Visa / Appeal From Orders of the Federal Circuit Court Dismissing Judicial Review of the Tribunal Decision
Outcome
Appeal dismissed.
Legal Topics
['protection Visa' 'complementary Protection' 'procedural Fairness' 'tribunal Hearing Invitation' 'decision in Absence of Applicant' 'legal Unreasonableness']
['migration Law' 'administrative Law'] ['protection Visa' 'complementary Protection' 'procedural Fairness' 'tribunal Hearing Invitation' 'decision in Absence of Applicant' 'legal Unreasonableness']

Case Brief

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Procedural Posture

Migration Appeal Concerning Refusal of a Protection (class Xa) Visa / Appeal From Orders of the Federal Circuit Court Dismissing Judicial Review of the Tribunal Decision

Legal Issues

  1. 1 ['Whether the primary judge erred in failing to hold that the Tribunal committed jurisdictional error by failing to apply the correct test under s 36(2)(aa) of the Migration Act 1958 (Cth).' 'Whether the appellant was denied procedural fairness because the Tribunal sent the hearing invitation by email and proceeded in his absence.' "Whether the Tribunal's decision to proceed under s 426A of the Migration Act 1958 (Cth) was legally unreasonable."]

Ratio Decidendi

The appeal failed because the Tribunal correctly identified and applied the complementary protection test under s 36(2)(aa), complied with its statutory obligations by sending the hearing invitation to the email address provided by the appellant, and was entitled to proceed under s 426A when the appellant did not appear. The appellant was taken to have received the email invitation, the primary judge found he actually received but did not open it, and the Tribunal also sent SMS reminders. In those circumstances there was no denial of procedural fairness and the decision to determine the review in the appellant's absence was not legally unreasonable.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs as agreed or taxed."]